THE 

TREATY  POWER 

UNDEE   THE 

CONSTITUTION  OF  THE  UNITED  STATES. 

COMMENTARIES 

• 

ON    THE 

TREATY  CLAUSES  OP  THE  CONSTITUTION;   CONSTRUCTION  OF  TREATIES; 
EXTENT  OF  TREATY-MAKING  POWER  ;  CONFLICT  BETWEEN  TREATIES 
AND  ACTS  OF  CONGRESS,  STATE  CONSTITUTIONS  AND  STATUTES  ; 
INTERNATIONAL    EXTRADITION;     ACQUISITION     OF     TERRI- 
TORY;  AMBASSADORS,   CONSULS  AND  FOREIGN  JUDG- 
MENTS;   NATURALIZATION    AND    EXPATRIATION; 
RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB 
VIOLENCE,    AND   CLAIMS   AGAINST 

GOVERNMENTS. 

i 

WITH  APPENDICES  CONTAINING 

REGULATIONS      OF      DEPARTMENT      OF      STATE      RELATIVE      TO      EXTRA- 
DITION   OF    FUGITIVES    FROM    JUSTICE,    A    LIST    OF    THE    TREATIES 
IN    FORCE,    WITH    THE    INTERNATIONAL    CONVENTIONS    AND 
ACTS    TO    WHICH    THE    UNITED    STATES    IS    A    PARTY, 
AND    A    CHRONOLOGICAL    LIST    OF    TREATIES. 


ROBERT  T.  DEVLIN, 

Of  the  San  Francisco  Bar, 

AUTHOR  OF  "A  TREATISE  ON  THE  LAW  OF  DEEDS. : 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  COMPANY, 

LAW  PUBLISHERS  AND  LAW  BOOKSELLERS. 
1908. 


Copyright,  1908. 

BY 
EGBERT  T.  DEVLIN. 


SAN  FRANCISCO: 

THE  FILMER  BROTHERS  ELECTROTYPE  COMPANY, 
TYPOGRAPHERS  AND  STERECTYPERS. 


PREFACE. 


The  two  most  important  powers  possessed  by  the  national  gov- 
ernment under  the  Constitution  of  the  United  States  are  the  power 
to  declare  war  and  the  power  to  make  treaties — powers  which, 
for  brevity  and  convenience,  we  may  designate  as  the  war  power 
and  the  treaty  power.  By  the  Declaration  of  Independence,  the 
American  colonies  became  free  and  independent  states,  capable  of 
entering  into  treaties  and  of  making  alliances  with  foreign  nations:. 

Under  the  Articles  of  Confederation  the  right  of  sending  and 
receiving  ambassadors  and  of  entering  into  treaties  with  other 
nations  was  conferred  upon  the  Continental  Congress.  Treaties 
made  under  such  authority  had,  however,  no  binding  force  upon 
the  separate  states,  many  of  which  passed  laws  completely  nul- 
lifying their  provisions.  There  was  an  entire  absence  of  judicial 
power  under  the  Articles  of  Confederation  to  enforce  the  obliga- 
tions of  a  'treaty,  and  Congress  was  unable  to  assure  the  other 
contracting  party  that  its  part  of  the  bargain  could  be  performed. 
The  various  states,  in  their  sovereign  capacity,  might  act  as  they 
willed,  and  there  was  no  authority  in  the  national  government, 
then  existing,  to  compel  the  fulfillment  of  national  compacts. 

These,  and  other  causes,  led  to  the  adoption  of  the  present  Con- 
stitution of  the  United  States,  which  declares  that  treaties  made 
under  its  authority  shall  be  the  supreme  law  of  the  land,  and  that 
the  judicial  power  of  the  federal  government  shall  extend  to  all 
cases  in  law  and  equity  arising  under  such  treaties.  The  Consti- 
tution contains  other  clauses,  prohibiting  the  states  from  entering 
into  treaties  and  placing  the  exercise  of  the  treaty  power  in  the 
hands  of  the  President  in  co-operation  with  the  Senate.  Recent 
events  have  made  the  questions  arising  from  the  exercise  of  this 
power  of  great  interest,  and  it  has  been  my  fortune  to  investigate, 
in  an  official  capacity,  on  behalf  of  the  United  States,  many  of  the 
questions  considered  in  this  volume. 

(iii) 


194600 


iv  PREFACE. 

The  treaty  clauses  of  the  Constitution  are  of  sufficient  impor- 
tance to  demand  more  consideration  than  is  generally  accorded 
to  them  in  works  on  constitutional  and  international  law,  and  it  was 
my  original  intention  to  consider  only  the  questions  arising  under 
them,  but  as  the  work  progressed,  it  broadened  in  its  scope  so  that 
now  it  treats  of  many  questions  of  a  cognate  nature  to  which  these 
clauses  give  rise. 

While  no  two  lawyers  will,  perhaps,  agree  that  one  particular 
branch  of  a  question  is  more  important  than  another — in  a  sense 
they  are  all  equally  important — yet  I  have  treated  some  subjects 
at  length  and  others  more  concisely.  The  constitutional  prohibi- 
tions on  the  states  to  enter  into  treaties,  the  making,  taking  effect 
and  termination  of  treaties,  and  the  federal  questions  arising  un- 
der treaties,  are  treated,  it  is  believed,  with  sufficient  complete- 
ness. Specially,  have  I  devoted  attention  to  the  construction 
of  treaties,  the  extent  of  the  treaty-making  power,  and  the  con- 
flict between  treaties  and  acts  of  Congress,  state  constitutions  and 
statutes.  The  law  relative  to  international  extradition  dependent 
on  treaty,  the  rights  and  duties  of  consuls,  the  acquisition  of  ter- 
ritory by  treaty,  together  with  naturalization  and  expatriation,  has 
been  also  rather  fully  considered,  while  the  chapters  on  the  re- 
sponsibility of  the  government  for  mob  violence  and  claims  against 
governments — covering  only  a  part  of  the  ground,  it  is  true — may 
possess  an  interest  from  another  than  a  purely  legal  standpoint. 

It  has  been  my  aim  to  give  the  law  as  stated  by  the  courts,  but 
I  have  not  hesitated,  when  I  deemed  it  proper,  to  express  my 
^wn  views,  placing  them,  however,  in  separate  sections.  It  may 
not  be  inappropriate  to  add  that  I  believe  that  the  United  States 
is  a  sovereign  nation,  fully  capable,  where  not  restrained  by  the 
limitations  of  the  Constitution,  of  exercising  all  the  powers  that 
attach  to  sovereignty,  and  consequently  that  the  treaty  power 
should  be  construed  in  a  broad  and  liberal  spirit,  and  held  to  ex- 
tend to  all  those  subjects  that  are  ordinarily  disposed  of  by  inter- 
mational  negotiation. 

ROBERT  T.  DEVLIN. 

San  Francisco,  May  1,  1908. 


OP  THE 
UNIVERSITY 


" 


TABLE  OF  CONTENTS. 


CHAPTER    I. 

TEEATY  CLAUSES  OF  THE  CONSTITUTION. 

§     1.  Treaty  clauses  of  the  Constitution. 

§     2.  Definitions. 

§     3.  The  continental  Congress. 

§     4.  Committee  to  prepare  plan  of  treaties. 

§     5.  Declaration  of  Independence. 

$     6.  Treaties  under  Articles  of  Confederation. 

§     7.  Weakness  of  the  confederation. 

§     8.  Treaties  under  continental  Congress. 

§     9.  Congress  unable  to  guarantee  observance  of  treaty  obligations. 

§  10.  Eefusal  of  states  to  observe  treaties. 

§  11.  Want  of  judicial  power  to  enforce  treaties. 

§  12.  Treaty  of  peace  with  Great  Britain. 

§  13.  Same  subject. 

§  14.  Breaches  of  this  treaty. 

§  15.  Constitution  removed  this  defect. 

§  16.  Comments  of  James  Madison. 

§17.  Comments  of  Samuel  Adams. 

§  18.  Formation  of  Constitution. 

§  19.  Organization  of  constitutional  convention. 

§  20.  Address  to  Congress. 

§  21.  Comments  of  John  Jay. 


CHAPTEE  II. 

PEOHIBITION  ON  STATES. 

§  22.  Prohibitory  clauses. 

§  23.  History  of  this  clause. 

§  24.  Confederate  states  had  no  legal  existence. 

§  25.  Constitutional  objections  to  statute. 

§  26.  Surrender  of  treaty  power  to  general  government. 

§  27.  Investment  by  guardian  in  Confederate  bonds. 

28.  Discharge  of  executor  investing  in   Confederate  bonds. 

(v) 


vi  TABLE  OP  CONTENTS. 

§  29.  Confederacy  an  organized  treason. 

§  30.  Contracts  to  aid  the  confederacy  void. 

§  31.  Ordinance   of   secession   a   nullity. 

§  32.  Sale  of  property  of  loyal  owners. 

§  33.  Laws  in  aid  of  insurrection  void. 

§  34.  Judgments  of  courts,  when  void. 

§  35.  No  general  rule  to  be  applied. 

§  36.  State  cannot  negotiate  for  extradition. 

§  37.  Holmes  case. 

§  38.  Treaties  now  govern. 


CHAPTEE  III. 

COMPACTS  BETWEEN   STATES. 

§  39.  Clause  as  to  compact  with  other  states. 

§  40.  Nature  of  compacts  that  may  be  made  by  states. 

§  41.  Extent  and  meaning  of  clause. 

§  42.  To  what  compacts  does  the  Constitution  apply. 

§  43.  Boundaries  between  two  states. 

§  44.  Controversies  at  time  of  adoption  of  Constitution. 

§  45.  Boundary  between  South  Dakota  and  Nebraska. 

§  46.  Construing   compacts  between   two   states. 

§  47.  Disputed  boundary  between  United  States  and  state. 

§  48.  Suits  by  state  to  recover  penalties. 

§  49.  Approval  of  Congress  implied  from  subsequent  legislation. 

§  50.  Creation  of  mutual  estoppel. 

§  51.  Contract  of  state  to  exempt  property  from  taxation. 

§  52.  Subsequent  statutes  directing  taxation  of  such  property. 

§  53.  Compacts  relating  to  property. 


CHAPTER  IV. 

MAKING   OF   TREATIES. 

§  54.  Power  to  make  treaties. 

§  55.  Difference  of  opinion  as  to  where  power  should  be  vested. 

§  56.  Vehement  attack  on  treaty  clauses. 

§  57.  Objections  to  lodging  power  with  President. 

§  58.  Differences   between   treaty-making  power  in   England   and  in  United 

States. 

§  59.  Other  objections. 

§  60.  Prerogative  of  the  Executive. 

§  61.  Treaty  inchoate  until  ratified. 

§  62.  Ratification  of  treaties  by  Senate. 


TABLE  OF  CONTENTS.  vii 

§  63.  Eejection  of  treaties  by  Senate. 

§  64.  Views  of  Mr.  Clay. 

§  65.  Adding  declaration. 

§  66.  Proviso  adopted  by  Senate. 

§  67.  Amendment  by  declaration  of  interpretation. 

§  68.  Views  of  Department  of  State. 

§  69.  Senate  resolution  controlling  meaning  of  treaty. 

§  70.  Executive  agreements. 

§  71.  Protocols  within  Executive  authority. 

§  72.  Instances. 

§  73.  Suspension  of  tariff  act  by  President. 

§  74.  No  discretion  in  President. 

§  75.  Nonintercourse  act. 

§  76.  Suspension  and  operation  of  acts  dependent  upon  President. 

§  77.  Suspension  of  act  prohibiting  imports. 

§  78.  Same  subject — Continued. 

§  79.  Importation  of  neat  cattle. 

§  80.  Products  of  Cuba  and  Porto  Eico. 

§  81.  Appropriation  of  money. 

§  82.  Moral  obligation. 

§  83.  Alaska  purchase. 

§  84.  Porto  Eico  as  foreign  territory. 

§  85.  Treaty  dependent  upon  legislative  action. 


CHAPTER  V. 

TAKING   EFFECT   AND   TEEMINATION  OF  TEEATIES. 

§  86.  Time  when  treaty  takes  effect. 

§  87.  Sovereignty  transferred  at  date  of  treaty. 

§  88.  Postponing  operation  until  approval  of  Congress. 

§  89.  Question  before  the  court. 

§  90.  Seasoning  of  the  court. 

§  91.  Effect  on  individual  rights. 

§  92.  Eetroactive  effect. 

§  93.  Authority  of  courts. 

§  94.  Construction  of  treaty  province  of  courts. 

§  95.  Termination  of  treaties. 

§  96.  Question  a  political  one. 

§  97.  Violation  of  treaty  by  one  nation. 

§  98.  Termination  of  treaties  by  notice. 

§  99.  Subject  matter  covered  by  later  treaty. 


viii  TABLE  OF  CONTENTS. 


CHAPTER  VI. 

'    PEDEEAL  QUESTION  UNDER  TEEATY. 

§  100.  Federal  question. 

§  101.  Fraudulent  claim. 

§  102.  Both  parties  claiming  under  grant. 

§  103.  Treaty  right  must  be  set  up. 

§  104.  When  to  be  set  up. 

§  105.  Claim  under  treaty  not  a  frivolous  question. 

§  106.  Title  in  third  person  under  treaty. 

§  107.  Outstanding  title  in  assignee  in  bankruptcy. 

§  108.  Construction  of  state  statutes. 

§  109.  Protection  of  inhabitants. 

§  110.  Award  under  claims  commission. 

§  111.  Diverse  citizenship  sole  ground  of  jurisdiction  at  commencement  of 

suit. 

§  112.  Treaty  introduced  as  part  of  history  of  case. 

§  113.  Definite  issue  as  to  claim  of    right. 

§  114.  Manner  in  which  cause  of  action  arises  to  be  stated. 


CHAPTER   VII. 

CONSTRUCTION  OF  TREATIES  AND  EXTENT  OF  TEEATY-MAKING 

POWEE. 

§  115.  Construction  of  treaties  a  judicial  question. 

§  116.  Interpretation  in  spirit  of  good  faith. 

§  117.  Intention  to  be  carried  out. 

§  118.  Treaties  in  two  languages. 

§  119.  Instructions  to  diplomatic  officers. 

§  120.  Both  are  originals. 

§  121.  Construction  favorable  to  execution  of  treaty. 

§  122.  Vague  and  indefinite  terms. 

§  123.  Whole  treaty  to  be  taken  together. 

§  124.  Right  of  property  in   award. 

§  125.  Liberal  construction. 

§  126.  Repugnant  clauses. 

§  127.  Construed  as  a  law. 

§  128.  Courts  cannot  question  rights  recognized  by  nation. 

§  129.  Jurisdiction  of  crime  on  foreign  ship. 

§  130.  Rule  declared  by  supreme  court  of  United  States. 

§  131.  Most  favored  nation  clause. 

§  132.  Rules  of  construction  codified. 

§  133.  Extent  of  treaty-making  power. 

§  134.  General  terms  used. 


TABLE  OF  CONTENTS.  ix 

§  135.  Comments. 

§  136.  Chancellor  Kent's  views. 

§  137.  Other  expressions. 

§  138.  Difference  between  delegation  of  treaty-making  power  and  legisla- 
tive power. 

§  139.  Expressions  of  courts. 

§  140.  Extends  to  all  proper  subjects  of  negotiation. 

§  141.  Comments. 

§  142.  Views  of  Mr.  Butler. 

§  143.  Comments. 

§  144.  Panama  canal  zone. 

§  145.  Right  to  attend  public  schools. 

§  146.  Treaty  provisions. 

§  147.  Constitution  and  statutes  of  California. 

§  148.  Resolution  as  to  Japanese  children. 

§  149.  Debate  in  United  States  Senate. 

§  150.  Position  of  the  United  States. 

§  151.  Views  of  Mr.  Lewis. 

§  152.  Same  subject — Is  the  treaty-making  power  limited  or  unlimited. 

§  153.  Same  subject — Limitation  by  words  of  Constitution. 

§  154.  The  tenth  amendment. 

§  155.  No  question  of  state  rights  involved. 

§  156.  Implied  limitations  upon  treaty-making  power. 

§  157.  Same  subject — Mr.  Root's  views. 

§  158.  Distribution  of  governmental  powers. 

§  159.  Suits  by  the  government. 

§  160.  Colored  children  and  the  public  schools. 

§  161.  Same  facilities  for  education  to  be  afforded. 


CHAPTER  VIII. 

CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS. 

§  162.  Treaties  supreme  law  of  land. 

§  163.  History  of  clause. 

§  164.  Pre-existing  treaties. 

§  165.  Under  the  authority  of  the  United  States. 

§  166.  Construction  of  clause. 

§  167.  Treaty  is  equivalent  to  an  act  of  Congress. 

§  168.  Treaty  is  a  contract. 

§  169.  Tariff  laws  and  treaties. 

§  170.  Acts  admitting  states  to  Union. 

§  171.  Treaties  with  Indians. 

§  172.  Acts  of  admission  affecting  navigable  waters. 

§  173.  Damages  for  temporary  inconvenience. 

§  174.  Building  bridges. 


x  ,  TABLE  OF  CONTENTS. 

§  175.  Head  money  cases. 

§  176.  Eeconciling  act  and  treaty. 

§  177.  Absurd  conclusion  to  be  avoided. 

§  178.  Eepeal  by  implication. 

§  179.  Fair  construction  not  permitting  arrest  on  prior  conviction. 

§  180.  Eeasoning  of  the  court. 

§  181.  Extension  of  treaty  by  doubtful  construction. 

§  182.  Abrogation  must  clearly  appear. 

§  183.  Dissenting  views  of  Justices  Field  and  Bradley. 

§  184.  Same  rule  as  to  repeal  of  statutes  by  implication. 

§  185.  Self-executing  treaties. 

§  186.  Chinese  exclusion  cases. 

§  187.  Chinese  children  born  in  the  United  States. 

§  188.  Application  of  fourteenth  amendment. 

§  189.  Eight  to  return. 

§  190.  Power  of  state  to  exclude. 

§  191.  Construction  of  exclusion  laws. 

§  192.  Conclusiveness  of  decision  of  department. 

§  193.  Hearing  arbitrarily  denied. 


CHAPTER  IX. 

STATE     CONSTITUTIONS     AND     STATUTES     IN     CONFLICT     WITH 

TEEATIES. 

§  194.  Comments. 

§  195.  Fourteenth  amendment  applies  to  aliens. 

§  196.  Procedure  in  criminal  cases. 

§  197.  Judicial  trial  necessary. 

§  198.  Employment  of  Chinese  by  corporation. 

§  199.  Comments. 

§  200.  Property  includes  right  to  labor. 

§  201.  Employment  .of  aliens  on  public  works. 

§  202.  Eight  to  administration. 

§  203.  Power  of  court  to  appoint  attorney  for  absent  heirs  displaced  by  treaty. 

§  204.  State  pilotage  laws. 

§  205.  Trademarks  protected  by  treaty. 

§  206.  Persons  adding  to  the  prevalence  of  disease. 

§  207.  Views  of  majority  of  court. 

§  208.  Dissenting  views. 

§  209.  South  Carolina  dispensary  act. 

§  210.  Treaty  devesting  state  of  right  to  tax. 

§  211.  Criminal  procedure. 

§  212.  Consuls  acting  as  judges. 

§  213.  Municipal   ordinances. 

§  214.  Special  rights  to  American  citizens. 


TABLE  OF  CONTENTS.  xi 

§  215.  Right  of  nonresident  aliens  to  damages  for  death  of  relative. 

§  216.  Prevention  of  intrusion  on  Indian  lands  a  police  regulation. 

§  217.  Covenant  not  to  rent  property  to  a  Chinaman. 

§  218.  Aliens  suing  in  courts. 

§  219.  Transitory  actions. 

§  220.  Eights  of  aliens  to  inherit  affected  by  treaty — Comments. 

§  221.  Disability  of  aliens. 

§  222.  Title  in  aliens  when  treaty  made. 

§  223.  Taking  by  devise. 

§  224.  Foreign  corporation  purchasing  stock  of  local  corporation. 

§  225.  Constitutional  legislation. 

§  226.  Alien  acquiring  title  by  descent. 

§  227.  Taking  by  dower  or  curtesy. 

§  228.  Alien  has  no  inheritable  blood. 

§  229.  Eight  of  alien  to  take  personal  property. 

§  230.  Treaties   removing   disability   of   aliens   to   inherit. 

§  231.  Treaty  admitting  of  two  constructions. 

§  232.  Contention  of  state. 

§  233.  Euling  of  court. 

8  234.  Other  decisions  of  supreme  court  of  United  States. 

§  235.  Same  subject. 

§  236.  Same  subject — Treaties   of   1783   and   1794. 

§  237.  Expression  of  executive  department  of  government. 

§  238.  Dissent  from  these  views. 

§  239.  In  California. 

§  240.  Constitutionality  of  statutes. 

§  241.  Eule  recognized  that  treaty  may  regulate  rights. 

§  242.  In  Delaware. 

§  243.  In  Illinois. 

§  244.  Existence  of  treaty. 

§  245.  Statute  not  unconstitutional  as  special  law. 

§  246.  Construction  of  words. 

§  247.  Allowance  of  time  to  sell. 

§  248.  In  Iowa. 

§  249.  Goods  not  including  lands. 

§  250.  Treaty  contemplating  one  step  of  transmission. 

§  251.  In  Kentucky. 

§  252.  Lapse  of  time  precluding  claim. 

§  253.  In  Maryland. 

§  254.  In  Massachusetts. 

§  255.  In  Michigan. 

§  256.  In  New  York. 

§  257.  Limitation  on  time  to  sell. 

§  258.  Existence  of  title  at  time  of  treaty. 

§  259.  Same  rights  as  resident  heir. 

§  260.  In  North  Carolina. 

§  261.  Confiscation  acts  annulled. 

§  262.  In  Pennsylvania. 


xii  TABLE  OF  CONTENTS. 

§  263.  In  South  Carolina. 

§  264.  In  Tennessee. 

§  265.  In  Texas. 

§  266.  In  Virginia. 


CHAPTER  X. 

TEEATIES  OF  CESSION. 

§  267.  Power  to  acquire  territory  by  treaty. 

§  268.  Territory  may  be  acquired  by  war  power  or  treaty-making  power. 

§  269.  Sovereignty  passes  and  not  property. 

§  270.  Wishes  of  population  not  to  be  consulted. 

§  271.  Rules  of  international  law. 

§  272.  Samoan  and  Gilbert  Islands. 

§  273.  Titles  not  devested. 

§  274.  Tide  lands  previously  granted. 

§  275.  Grants  made  by  states  in  case  of  disputed  boundaries. 

§  276.  What  are  property  rights. 

§  277.  Subsequent  acts  of  Congress. 

§  278.  Property   includes    every   species    of   title. 

§  279.  Copyrights,  patents  and  trademarks. 

§  280.  Loss  of  trademarks  by  laches. 

§  281.  Political  department  to  provide  mode. 

§  282.  Delegation  to  judicial   department. 

§  283.  Incomplete  titles  not  made  complete. ' 

§  284.  Grant  deemed  abandoned. 

§  285.  Collateral  attack. 

§  286.  Perfected  claims  before  land  commission. 

§  287.  Measuring  of  land. 

§  288.  Titles  complete   at   time   of   cession. 

§  289.  Act  of  Congress  in  conflict  with  treaty  of  cession. 

§  290.  Mexican  titles  in  California  after  treaty. 

§  291.  Effect  of  these  acts. 

§  292.  Decree  has  effect  of  judgment. 

§  293.  Other  statutes. 

§  294.  Preventing  incorporation  of  ceded  territory  into  United  States. 

§  295.  Inhabitants  of  ceded  territory  as  citizens. 

§  296.  Foreign   corporations  not   subjects. 

§  297.  Effect  of  treaty  on  dam  in  Eio  Grande. 


<^ 

^     OF    THE 


UNIVERSITY          TABLE  OF  CONTENTS.  xiii 

OF 
^*UF£Rjgfes 

CHAPTER  XI. 

TEEATIES    OF    EXTRADITION   AND    PROCEEDINGS    THEREUNDER. 

§  298.  Extradition  dependent  upon  treaty. 

§  299.  Extradition  included  within  treaty-making  power. 

§  300.  Delivery  to  the  United  States  as  a  matter  of  comity. 

§  301.  No    power   to    reciprocate. 

§  302.  Escape   effected  by  means  of  foreign  vessel. 

§  303.  Asking  extradition  as  a  favor. 

§  304.  Delivery  independent  of  treaty. 

§  305.  Surrender  not   in   pursuance   of  treaty. 

§  306.  Delivery  under  immigration   acts. 

§  307.  Territory   occupied   by   United   States. 

§  308.  Treaty  measure  of  right. 

§  309.  Crime    committed   within   jurisdiction. 

§  310.  Crime   not   complete  in   one   country. 

§  311.  Irregularities    in    extradition. 

§  312.  Indictment  and  trial  valid. 

§  313.  Action  by  the  government. 

§  314.  Criminal  by  the  law  of  both  countries. 

§  315.  Bonds   and   coupons. 

§  316.  Common-law  crimes. 

§  317.  Embezzling  public   moneys. 

§  318.  Law  of  the  place. 

§  319.  Laws   of  the   place   of  refuge. 

§  320.  Forgery  in  the  third  degree. 

§  321.  Retroactive   effect   of  treaties^ 

§  322.  Special  stipulation  as  to  time  of  taking  effect. 

§  323.  Extradition    of    citizens. 

§  324.  Treaty  provisions. 

§  325.  Position   of   the   United   States. 

§  326.  Under  the  Mexican  law. 

§  327.  Citizens  of  another  country. 

§  328.  Political  offenses. 

§  329.  Final  decision  as  to  question. 

§  330.  Some  instances. 

§  331.  Raid  at  San  Ignacio. 

§  332.  Pilcomayo  mutineers. 

§  333.  Exemption  from  local  jurisdiction. 

§  334.  Attempt  against  life   of  President  or  other  officers. 

§  335.  Case  of  anarchists. 

§  336.  Trial  for  different  offense. 

§  337.  Pleading  other  offense. 


xiv  TABLE  OF   CONTENTS. 

§  338.  Variances. 

§  339.  Lesser  offense. 

§  340.  Arrest  on  prior  charge. 

§  341.  Offense  committed  pending  trial. 

§  342.  Application  for  requisition. 

§  343.  Mandate. 

§  344.  Who  may  act  as  magistrate. 

§  345.  Sufficiency  of  the  complaint. 

§  346.  Precision  of  indictment  not  required. 

§  347.  Ordinary   technicalities   not   applicable. 

§  348.  Arrest  of  fugitive. 

§  349.  Provisional  arrest. 

§  350.  Evidence  required. 

§  351.  Foreign  depositions. 

§  352.  Evidence  on  behalf  of  fugitive. 

§  353.  Habeas    corpus    proceedings. 

§  354.  Appeal  and  not  writ  of  error. 

§  355.  Consul  may  appeal. 

§  356.  Conflicting  evidence. 

§  357.  Surrender  of  fugitive  an  executive  function. 

§  358.  Surrender  upon   different  charge. 

§  359.  Eefusal  to  surrender. 

§  360.  Eelease  of  debtor  in  jail  under  civil  process. 

§  361.  Delivery  within  two  months  after  commitment. 

§  362.  Transit  across  the  United  States. 

§  363.  Eestoration  of  property. 

§  364.  Expenses  of  extradition. 

§  365.  Expenses  of  district  attorney. 

§  366.  Method  for  payment  of  expenses. 

§  367.  Deserting  seamen. 

§  368.  Gradual  extension  of  list  of  crimes  included  in  treaties. 

§  369.  Eegulations  of  State  Department. 


CHAPTEE  XII. 

TEEATIES    WITH   INDIANS. 

§  370.  Treaties    with    Indians. 

§  371.  Dawes  Commission. 

§  372.  Eeport    of    commission. 

§  373.  Further  legislation. 

§  374.  Tribe  party  to  suit. 

§  375.  Appeals  to  the  supreme  court. 

§  376.  Constitutionality  of  legislation. 

§  377.  Indian  treaties  prior  to  legislation. 

§  378.  Eelinquishment  by  Great  Britain. 


TABLE  OP  CONTENTS.  4  xv 

§  379.  Indian  right  of  occupation. 

§  380.  Cutting  timbers  by  Indians. 

§  381.  Title  of  United  States  devested  by  patent. 

§  382.  Abandonment   of  possession  by  Indians. 

§  383.  Treaty-making  power  may  dispose  of  government's  title. 

§  384.  Indian  nation  not  a  foreign  state. 

§  385.  General  acts  of  Congress  not  applicable  to  Indians. 

§  386.  Indians   becoming   citizens. 

§  387.  Policy   of   the   United   States. 

§  388.  Effect    of    treaties   with    Indians. 

§  389.  Kecognition   of   executive   department   followed  by   courts. 

§  390.  Liberal  construction  of  treaties. 

§  391.  May  be  controlled  by  legislation. 

§  392.  Technical  meaning  of  treaties  not  to  be  considered. 

§  393.  Indian  tribe  not  a  sovereign    nation. 


CHAPTER  XIII. 

AMBASSADORS,    CONSULS,    CONSULAR    COURTS    AND    FOREIGN 

JUDGMENTS. 

§  394.  General    comments. 

§  395.  Courts  bound  by  recognition  of  President. 

§  396.  Proof  by  parol  evidence. 

§  397.  Appointment  of  ambassadors  and  consuls. 

§  398.  Citizen  appointed  diplomatic  representative. 

§  399.  Privileges  of  ambassadors  and  ministers. 

§  400.  Resignation  as  bar  to  certiorari. 

§  401.  Rights  and  privileges  of  consuls. 

§  402.  Contract  made  in  official  capacity. 

§  403.  Consular  regulations  of  United  States. 

§  404.  Violation  of  criminal  laws. 

§  405.  In  eastern  countries. 

§  406.  United  States  court  for  China. 

§  407.  What  law  to  prevail. 

§  408.  Object  of  this  court. 

§  409.  Common  law  in  force. 

§  410.  Obtaining  money  under  false  pretenses. 

§  411.  Suits  against  consuls. 

§  412.  Exemption  under  such  statutes  not  waived  by  failure  to  plead. 

§  413.  Reclamation  assessment. 

§  414.  Concurrent  jurisdiction  with  state  courts. 

§  415.  Right  may  be  waived. 

§  416.  Compulsory  attendance  of  consuls  as  witnesses. 

§  417.  Consular    convention    with    France. 


xvi  TABLE  OF  CONTENTS. 

§  418.  Sixth  amendment  to  Constitution. 

§  419.  Diplomatic  action. 

§  420.  Distinction  as  witnesses  between  ambassadors  and  consuls. 

§  421.  Good  excuse  to  be  shown. 

§  422.  Subpoena  in  behalf  of  prosecution. 

§  423.  Contention  of  the  government. 

§  424.  Insurgent  government  becoming  established. 

§  425.  Subpoena  by  a  state  court. 

§  426.  Archives  privileged. 

§  427.  American  consuls  as  witnesses. 

§  428.  Instructions  of  Department  of  State. 

§  429.  Other  instances. 

§  430.  Instructions  of  Mr.  Hay,  Secretary  of  State. 

§  431.  Facts  within  personal  knowledge  of  consul. 

§  432.  Evidence  before  courts-martial. 

§  433.  Information  received  in  official  capacity. 

§  434.  International  law  part  of  the  law  of  United  States. 

§  435.  Eeciprocity  in  foreign  judgments. 

§  436.  Foreign  judgments  in  personam. 

§  437.  Principle  as  declared  by  supreme  court  of  the  United  States. 

§  438.  International  law  founded  upon  mutuality. 

§  439.  Dissenting  views. 

§  440.  Subject  continued — Impeachment  for  fraud. 

§  441.  In  the  absence  of  fraud  the  merits  cannot  be  inquired  into. 

§  442.  Mexican  judgments. 

§  443.  Canadian  judgments. 

§  444.  Eule  in  England. 

§  445.  Contract  to  influence  corruptly  officer  of  foreign  government. 

§  446.  Consul  cannot  assume  position  antagonistic  to  his  government. 

§  447.  Jurisdiction  of  consuls  by  treaties. 

§  448.  Liability  for   false  imprisonment. 

§  449.  Authority  of  consul  in  enemy's  country. 

§  450.  Power  of  foreign  consul   to  commence  suit  in  rem. 

§  451.  Intervention  of  consul. 

§  452.  Administration  of  estates. 

§  453.  Shipping  and  seamen. 

§  454.  Action  of  consul  not  conclusive. 

§  455.  American  seamen. 

§  456.  Fees  for  prosecution  of  claim. 

§  457.  Judicial  notice  of  signature  and  seal. 

§  458.  Acknowledgments  and  affidavits  by  consular  officers. 


TABLE  OP  CONTENTS.  xvii 


CHAPTEE  XIV. 

NATURALIZATION  AND  EXPATRIATION. 

§  459.  Naturalization  and  expatriation. 

§  460.  Perpetual  allegiance. 

§  461.  American  doctrine. 

§  462.  Compulsory  military  service. 

§  463.  Claim  of  exemption  as  a  matter  of  comity. 

§  464.  Treaties  of  naturalization. 

§  465.  Other  treaties  on  same  subject. 

§  466.  Citizens  in  ceded  territory. 

§  467.  Effect  of  judgment. 

§  468.  Setting  aside  certificate  of  citizenship  under  recent  law. 

§  469.  Collective  naturalization  by  admission  of  a   state. 

§  470.  Expatriation  of  American  citizens. 

§  471.  Statute  of  1907. 


CHAPTER  XV. 

RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE. 

§  472.  General  comments. 

§  473.  Property  of  consul  injured  through  negligence. 

§  474.  Punishment   of   violation   of   treaty   right — President   Harrison's   rec- 
ommendation. 

§  475.  Introduction  of  bill  to  carry  out  recommendation. 

§  476.  President  McKinley's  recommendation. 

§  477.  Renewal  of  recommendation. 

§  478.  President  Roosevelt's  recommendation. 

§  479.  Hostility  toward  Japanese. 

§  480.  Claims  made  by  the  United  States. 

§  481.  Official  interference  limited  to  tortious  acts. 

§  482.  Rules  of  Department  of  State. 

§  483.  Redress  for  injuries — Wheelock's  case. 

§  484.  Offer  of  settlement. 

§  485.  Case  of  William  Wilson. 

§  486.  Zambrano's  case. 

§  487.  Case  of  Dr.  Shipley. 

§  488.  Grounds  for  interference. 

§  489.  Courts  open  for  redress. 

§  490.  Monti  jo  controversy. 

§  491.  Federal  government  of  Colombia  responsible  for  acts  of  states. 

§  492.  Same  practice  in  the  United  States. 


xviii  TABLE  OF  CONTENTS. 

§  493.      Constitution  of  Colombia  prohibiting  interference  with  states. 

§  494.  An  embarrassing  precedent. 

§  495.  Department    of    State    not    a  court  of  error. 

§  496.  Demands  upon  the  United  States. 

§  497.  Destruction  of  French  privateers  at  Savannah. 

§  498.  Contention  of  France. 

§  499.  Position  of  the  United  States. 

§  500.  New  Orleans  and  Key  West  riots  in  1851. 

§  501.  Distinction  between  rights  of  consul  and  resident  foreigners. 

§  502.  Appropriation  by  Congress. 

§  503.  Explanations  of  appropriation. 

§  504.  Damages  for  destruction  of  property. 

§  505.  The   steamer  /'  Caroline. " 

§  506.  Arrest  of  McLeod. 

§  507.  Diplomatic  action. 

§  508.  Opinion  of  John  Quincy  Adams. 

§  509.  Principle  of  public  law  admitted. 

§  510.  Federal  statute  enacted. 

§  511.  Attacks  on  Chinese  at  Denver. 

§  512.  Views  of  Mr.  Evarts,  Secretary  of  State. 

§  513.  Compensation  to  owners  of  property. 

§  514.  Attack  on  Chinese  at  Bock  Springs. 

§  515.  Case  of  territory. 

§  516.  American  demands  on  China. 

§  517.  Views  of  Mr.  Bayard,  Secretary  of  State. 

§  518.  Incident  devoid  of  national  character. 

§  519.  China  closed  to  residence. 

§  520.  No  reciprocity  intended. 

§  521.  System  of  American  government  known  to  China. 

§  522.  President  Cleveland's  special  message. 

§  523.  Views  of  Senator  Edmunds. 

§  524.  Other  allowances  for  injuries  to  Chinese  residents. 

§  525.  Explanation  of  treaty. 

§  526.  Mafia  riots  and  lynching  at  New  Orleans. 

§  527.  Demands  of  the  Italian  government. 

§  528.  Withdrawal  of  American  Minister. 

§  529.  Tender  of  indemnity. 

§  530.  Suits   to   recover   damages. 

§  531.  Killing  of  Italian  subjects  in  Colorado  in  1895. 

§  532.  Variance  between  consul  and  ambassador. 

§  533.  Action  of  the  United  States. 

§  534.  Lynching  of  Italians  at  Hahnville. 

§  535.  Government  citizen's  agent. 

§  536.  Contention   of   Italian  ambassador. 

§  537.  Italians  voting. 

§  538.  Subject  closed  by  appropriation. 

§  539.  Eenunciation   of   Italian   allegiance. 


TABLE  OF  CONTENTS.  xix 

§  540.  Other  lynching  of  Italians. 

§  541.  Wounding  of  a  British  subject  at  New  Orleans. 

§  542.  Appropriation  by  Congress. 

§  543.  Hanging    of   a    Mexican   in   California. 

§  544.  Responsibility  of  government  for  boycott. 

§  545.  Eesponsibility  of  municipal  corporation  for  damages  by  mobs. 

§  546.  Liability  imposed  by  statute. 

§  547.  Eeputation  of  deceased. 

§  548.  Participation  by  owner. 

§  549.  Notice  to  be  given. 

§  550.  Immaterial  ruling. 

§  551.  Sufficient  time  to  give  notice. 

§  552.  Constitutionality  of  such  statutes. 

§  553.  Liberal  construction. 

§  554.  Common  purpose  of  crowd. 


CHAPTER  XVI. 

CLAIMS  AGAINST  GOVERNMENTS. 

§  555.  In  general. 

§  556.  Spanish  war  claims  commission. 

§  557.  Citizen  must  seek  redress  through  his  government. 

§  558.  Foreigners  excluded  from  suing. 

§  559.  Suits  by  one  state  against,  another. 

§  560.  Presentation   through   Department   of    State. 

§  561.  Action   against   other   governments. 

§  562.  Rules  of  Department  of  State. 

§  563.  Discretion  of  government. 

§  564.  Policy  of  Great  Britain. 

§  565.  Objections  to  presentation  of  claims. 

§  566.  Fraud  in  claim. 

§  567.  Citizenship. 

§  568.  Policy  of  the  United  States. 

§  569.  Naturalization  has  no  retroactive  effect. 

§  570.  Asuignability  of  right. 

§  571.  Assignment  of  award. 

§  572.  Claim  of  bankrupt. 

§  573.  Resort  to  local  remedies. 

§  574.  Courts  of  South  American   republics. 

§  575.  Claim  based  on  treaty  with  Italy. 

§  576.  Another  instance. 

§  577.  Discrimination  against  American  citizens. 

§  578  Moneys    received    from    foreign    governments    in    trust    for    America u 
citizens. 


xx  TABLE  OF   CONTENTS. 

§  579.  Payment  of  interest  in  claims. 

§  580.  Default  not  attributed  to  government. 

§  581.  Questions  involving  title  to  real  estate. 

§  582.  Claims  arising  on  contracts. 

§  583.  Court  of  claims. 

§  584.  Jurisdictional  requirements. 

§  585.  The  Bowman  Act. 

§  586.  Liberal  construction  of  act. 

§  587.  The  Tucker  Act. 

§  588.  Concurrent  jurisdiction  of  district  and  circuit  courts. 

§  589.  Procedure  under  the  act. 

§  590.  Judgments  and  appeals. 


TABLE  OF  CASES  CITED. 


SECTION 

Aaron  v.  City  of  Wausau,  98  Wis.  592,  74  N.  W.  354,  40  L.  R.  A.  733 554 

Abbots  v.  Kennedy,  5  Ala.  396 277 

Adair  v.  White,  85  Cal.  313,  24  Pac.  663. 292 

Adams  v.  Akerhmd,  168  111.  632,  48  N.  B.  454 246 

Adams  v.  City  of  Salena,  58  Kan.  246,  48  Pac.  918 547 

Adamson  v.  City  of  New  York,  96  N.  Y.  Supp.  907,  110  App.  Div.  98 554 

Adler  v.  Land  etc.  Co.,  114  Ala.  562,  62  Am.  St.  Rep.  140,  21  South.  493.  ..  440 

Adriance  v.  La  Grave,  59  N.  Y.  110,  17  Am.  Rep.  317 298 

Adult,  In  re,  55  Fed.  376 ' 319,  345,  353 

Ah  Fong,  In  re,  3  Saw.  144,  Fed.  Cas.  No.  102 190 

Ah  Kee,  In  re,  22  Fed.  519,  22  Blatchf .  520 191 

Ah  Lung,  In  re,  18  Fed.  28,  9  Saw.  306 176,  185,  191 

Ah  Ping,  In  re,  23  Fed.  329 189 

Ah  Quan,  In  re,  21  Fed.  182 191 

Ah  Yow,  In  re,  59  Fed.  561 191 

Ah  Yuk,  In  re,  53  Fed.  781 191 

Ainsa  v.  New  Mexico  etc.  R.  Co.,  175  U.  S.  76,  20  Sup.  Ct.  Rep.  28,  44  L. 

ed.  78 281,  286,  288,  293 

Ainsa  v.  United  States,  161  U.  S.  208,  16  Sup.  Ct.  Rep.  544,  40  L.  ed. 

673 273,  293 

Ainsa  v.  United  States,  184  U.  S.  639,  22  Sup.  Ct.  Rep.  507,  46  L.  ed.  727 . .  293 

Airhart  v.  Massieu,  98  U.  S.  491,  25  L.  ed.  213.. 222 

Akerman,  13  Op.  Atty.  Gen.  354 132 

Alabama  v.  Georgia,  64  U.  S.  (23  How.)  505,  16  L.  ed.  556 44 

Alabama  etc.  R.  R.  Co.  v.  Jones,  Fed.  Cas.  No.  127,  7  Bank.  Reg.  171 435 

Alaska  Commercial  Co.  v.  Debney,  144  Fed.  1,  75  C.  C.  A.  131 443 

Alfson  v.  Bush  Co.,  182  N.  Y.  393,  108  Am.  St.  Rep.  815,  75  N.  E.  230 215 

Allegheny  County  v.  Gibson,  90  Pa.  397,  35  Am.  Rep.  670 

546,  549,  552,  553,  554 

Allentown  v.  Telegraph  Co.,  52  Am.  St.  Rep.  246,  note 240 

Ailing  v.  United  States,  114  U.  S.  562,  5  Sup.  Ct.  Rep.  1080,  29  L.  ed.  272. .  583 

Amalia,  The,  3  Fed.  652 212 

Amat  's  Succession,  18  La.  Ann.  403 210 

American  Ins.  Co.  v.  Canter,  26  U.  S.  (1  Pet.)  511,  7  Fed.  242 469 

American  Ins.  Co.  v.  356  Bales  of  Cotton,  1  Pet.  (U.  S.)  512,  7  L.  ed.  243. .  267 
American  Ins.  Co.  v.  366  Bales  of  Cotton  (Canter),  1  Pet.  542,  7  L.  ed. 

243 132 

American  Sugar  Ref .  Co.  v.  United  States,  136  Fed.  508 90 


Kxii  TABLE  OF  CASES  CITED. 

SECTION 

Amiable  Isabella,  The,  6  Wheat.  1,  5  L.  ed.  191 132,  140 

Anderson  v.  Lewis,  Freem.  Ch.  178 115 

Andes  v.  Millard,  70  Fed.  517 440 

Angariea  de  la  Kua  v.  Bayard,  4  Mackey,  310 60 

Ansbro  v.  United  States,  159  TJ.  S:  698,  16  Sup.  Ct.  Eep.  189,  40  L.  ed. 

311  113 

Anzar  v.  Miller,  90  Cal.  342,  27  Pac.  299 285,  286,  288 

Ajsis  v.  United  States,  88  Fed.  936 289 

Arihart  v.  Massieu,  98  U.  S.  496,  25  L.  ed.  215 273 

Arthur  v.  Homer,  96  U.  S.  140,  24  L.  ed.  812 184 

Ash  v.  People,  83  Am.  Dee.  742,  note 240 

Astiazaran  v.  Santa  Kita  Min.  Co.,  148  U.  S.  80,  13  Sup.  Ct.  Bep.  457,  37 

L.  ed.  377 282,  286,  289 

Atherton  v.  Fowler,  96  U.  S.  513,  24  L.  ed.  732 291 

Atkinson  v.  United  States,  29  Ct.  of  Cl.  68 123 

Attorney  General  v.  Bay  State  Min.  Co.,  99  Mass.  148,  96  Am.  Dec.  717. .  240 

Auditor  General  v.  Williams,  94  Mich.  188,  53  N.  W.  1100 392 

Ayers,  Ex  parte,  123  U.  S.  489,  8  Sup.  Ct.  Kep.  164,  31  L.  ed.  216 559 

Bacon  v.  Texas,  163  U.  S.  207,  16  Sup.  Ct.  Eep.  1023,  41  L.  ed.  132 52 

Bahnaud  v.   Bize,  105  Fed.  485 230,  236 

Baiz,  Ex  parte,  135  U.  S.  403,  10  Sup.  Ct.  Kep.  854,  34  L.  ed.  222 398 

Baker,  In  re,  29  How.  Pr.  485 201 

Baker  v.  Grice,  169  U.  S.  284,  18  Sup.  Ct.  Eep.  323,  42  L.  ed.  748 353,  354 

Baker  v.  Harvey,  181  U.  S.  481,  21  Sup.  Ct.  Eep.  690,  45  L.  ed.  963 288 

Baker  v.  Newland,  25  Kan.  25 176 

Baker  v.  Portland,  5  Saw.  566,  2  Fed.  Cas.  No.  777 201 

Baker  v.  Shy,  9  Heisk.   (Tenn.)   85 226,  264 

Baker  v.  State,  88  Wis.  147,  59  N.  W.  572 312 

Baldwin  v.  Franks,  120  U.  S.  702,  7  Sup.  Ct.  Eep.  656,  30  L.  ed.  766 2 

Baldwin  v.  Goldfrink,  88  Tex.  249,  31  S.  W.  1064 265,  288 

Baldwin  v.  Kansas,  129  U.  S.  57,  9  Sup.  Ct.  Eep.  195,  32  L.  ed.  642 211 

Baltimore  v.  Pouetney,  25  Md.  107 545 

Baltimore  &  P.  E.  Co.  v.  Hopkins,  130  U.  S.  225,  9  Sup.  Ct.  Eep.  503,  32 

L.   ed.  913 112 

Baltz  Brewing  Co.  v.  Kaiserbrauerer,  74  Fed.  222,  20  C.  C.  A.  402 205 

Bank  of  Australasia  v.  Harding,  9  Com.  B.  661 444 

Bank  of  Australasia  v.  Nias,  16  Q.  B.  717 444 

Bank  of  California  v.  Shaber,  55  Cal.  322 546 

Banks  v.  Moreno,  39  Cal.  246 281,  285 

Barber  v.  International  Co.  of  Mexico,  73  Conn.  587,  48  Atl.  758 457 

Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup.  Ct.  Eep.  357,  28  L.  ed.  923 213 

Barges  v.  Hogg,  2  N.  C.  485 227 

Barnett  v.  Barnett,  9  N.  Mex.  205,  50  Pac.  337 277 

Barren  v.  Kelly,  31  Tex.  476 .469 


TABLE  OF  CASES  CITED. 


SECTION 

Barrett  v.  Kelly,  31  Tex.  476 221,  227 

Barry  v.  Gamble,  3  How.  32,  11  L.  ed.  479 288 

Bartram  v.  Bobertson,  15  Fed.  212,  21  Blatchf.  211 85,  87,  167 

Bartram  v.  Eobertson,   122  U.   S.   116,   7   Sup.   Ct.  Eep.   1115,  30  L.  ed. 

1118 131,  169 

Baruch,  In  re,  41  Fed.  473 336 

Barzizas  v.  Hopkins,  2  Eand.    (Va.)    276 226 

Bates,  11  Op.  Atty.  Gen.  117 565 

Battelle's  Case,  7  Ct.  of  Cl.  297 587 

Baxter  v.  United  States,  51  Fed.  675,  2  C.  C.  A.  411 580 

Bayard  v.  Singleton,  1  N.  C.  5 221 

Beard  v.  Federy,  3  Wall.  478,  18  L.  ed.  88 274,  281,  291,  292 

Beck,  In  re,  11  N.  Y.  Supp.  199,  31  N.  Y.  St.  965,  2  Connolly  Surr.  (N. 

Y.)  355 257 

Beck  v.  McGillis,  9  Barb.   (N.  Y.)   35 229 

Bee,  The,  1  Ware,  336,  3  Fed.  Cas.  No.  1219 227 

Beecher  v.  Wetherby,  95  U.  S.  525,  24  L.  ed.  441 379 

Behrendt,   In  re,  22  Fed.   699,   23  Blatchf.   40 350 

Belding  v.  Hebard,  103  Fed.  542,  43  C.  C.  A.  296 50 

Beley  v.  Naphtaly,  169  U.  S.  353,  18  Sup.  Ct.  Rep.  354,  42  L.  ed.  775 291 

Bellencontre,  In  re,  2  Q.  B.  D.  122 350 

Bello   Corrunes,  The,   6  Wheat.   152,  5  L.   ed.   229 450,  451 

Benito  Estenger,  The,  176  U.  S.  568,  20  Sup.  Ct.  Eep.  489,  44  L.  ed.  592 ...   449 

Bennett  v.  Harms,  51  Wis.  251,  81  N.  W.  222 227 

Bennett  v.   Hibbert,   88   Iowa,   154,   55   N.   W.    93 223 

Benson  v.  McMahon,  127  U.  S.  457,  8  Sup.  Ct.  Eep.  1240,  32  L.  ed.  234 

316,  331,  343,  344,  349,  350 

Benson  v.  United  States,  44  Fed.  182 216 

Berger  v.  United  States,  36  Ct.  of  Cl.  243 586 

Bernal  v.  Lynch,  36  Cal.  143 292 

Biddle  v.  United  States,  156  Fed.  759 408,  410 

Black,  9  Op.  Atty.  Gen.  246 344 

Black,  9    Op.    Atty.    Gen.    338 563 

Black,  9  Op.  Atty.  Gen.  497 .  . . '. 344,  366 

Blair  v.  Odin,  3  Tex.  288 273 

Blair  v.  Pathkiller,  2  Yerg.    (Tenn.)    407 264 

Blandf ord  v.  State,  10  Tex.  App.  627 317,  336 

Blecker  v.  Bond,  3  Wash.  C.  C.  542,  Fed.  Cas.  No.  1534 383 

Blight  v.  Eochester,  7  Wheat.  535,  5  L.  ed.  516 226,  228 

Blodgett  v.  Syracuse,  36  Barb.    (N.  Y.)   526 554 

Blount  v.  Horniblea,  3  N.  C.  (2  Hayw.)  36 221 

Blue  Jacket  v.  Commissioners,  3  Kan.  299 387 

Blue  Jacket  v.  Commissioners  of  Johnson  Co.   (The  Kansas  Indians),   5 

Wall.  737,  18  L.  ed.  667. 390,  392 

Blythe  v.  Hinckley,  127  Cal.  435,  59  Pac.  787 240,  241 


xxiv  TABLE  OF  CASES  CITED. 

SECTION 

Bockerling  v.  United  States,  35  Ct.  of  Cl.  312 583 

Bodemuller  v.  United  States,  39  Fed.  437 567 

Bollerman  v.  Blake,  94  N.  T.  624,  24  Hun,  187 257 

Bonaparte  v.  Camden  etc,  E.  Co.,  Baldw.  205,  3  Fed.  Gas.  No.  1617 227 

Borgmeyer  v.  Idler,  159  U.  S.  408,  16  Sup.  Ct.  Eep.  34,  40  L.  ed.  199 

Ill,  112,  114 

Bors  v.  Preston,  111  U.  S.  252,  4  Sup.  Ct.  Eep.  407,  28  L.  ed.  419.  .398,  411,  414 

Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  24  L.  ed.  989 213 

Botiller  v.  Dominguez,  130  U.  S.  238,  9  Sup.  Ct.  Eep.  525,  32  L.  ed. 

928 94,  282,  286,  288,  289 

Botiller  v.  Dominguez,  130  U.  S.  247,  9  Sup.  Ct.  Eep.  527,  32  L.  ed.  929 . .  171 

Boulden  v.  Phelps,  12  Saw.  316,  30  Fed.  547 291 

Boutwell  v.  United  States,  29  Ct.  of  Cl.  68 123 

Bowe  v.  United  States,  42  Fed.  761 587 

Boyd  v.  State  of  Nebraska,  143  U.  S.  158,  12  Sup.  Ct.  Eep.  375,  36  L.  ed. 

103 469 

Boyle  v.  Hinds,  2  Saw.  527,  3  Fed.  Cas.  No.  1759 292 

Bradford,  1  Op.  Atty.  Gen.  53 488 

Bradley  v.  Dwight,  62  How.  Pr.  300 226 

Bradstreet  v.  Supervisors  of  Oneida  County,  13  Wend.  546 221,  226 

Bradwell  v.  Weeks,  1  Johns.  Ch.  (N.  Y.)  206 229 

Brannigan  v.  Union  G.  M.  Co.,  93  Fed.  164 215 

Breaux  v.  Johns,  4  La.  Ann.  142,  50  Am.  Dec.  557 382 

Breen,  In  re,  73  Fed.  458 317,  344,  350,  351 

Brene  v.  Insurance  Co.,  96  U.  S.  627,  24  L.  ed.  858.  .* 581 

Brig  Aurora  v.  United  States,  7  Cranch,  382,  3  L.  ed.  378. 75 

Briggs'  Case,  15  Ct.  of  Cl.  48 584 

Bright  Js  Lessee  v.  Eochester,  7  Wheat.  535,  5  L.  ed.  516 226,  236 

Bringham  v.  Bristol,  65  Me.  426,  20  Am.  Eep.  711 552 

Brooks  v.  Missouri,  124  U.  S.  394,  8  Sup.  Ct.  Eep.  443,  31  L.  ed.  456 211 

Brown,  Ex  parte,  148  Fed.  68 340 

Brown,  Ex  parte,  205  U.  S.  309,  27  Sup.  Ct.  Eep.  539,  51  L.  ed.  816 340 

Brown  v.  Landon,  30  Hun,  57 458 

Brown  v.  Massachusetts,  144  U.  S.  579,  12  Sup.  Ct.  Eep.  759,  36  L.  ed. 

550 211 

Brown  v.  Pearson,  41  Iowa,  481 226 

Brown  v.  Sprague,  5  Denio  (N.  Y.) ,  545 258 

Brown  v.  Steele,  23  Kan.  675 389 

Brown  v.  United  States,  32  Ct.  of  Cl.  432 393 

Browne  v.  Palmer,  66  Neb.  287,  92  N.  W.  315 458 

Browning  v.  Browning,  3  N.  Mex.  467,  9  Pae.  677 277 

Bryan  v.  Kennett,  113  U.  S.  179,  5  Sup.  Ct.  Eep.  407,  28  L.  ed.  908 . .  273,  278 
Bryan  v.  Kentucky  Conference  M.  E.  Church  etc.,  151  U.  S.  639,  14  Sup. 

Ct.  Eep.  465,  38  L.  ed.  297 52 

Bryan  v.  United  States,  21  Ct.  of  Cl.  249 587 


TABLE  OF  CASES  CITED.  xxv 


SECTION 

Bryant,  In  re,  80  Fed.  282 350 

Bryant  v.  United  States,  167  II.  S.  104,  17  Sup.  Ct.  Rep.  744,  42  L.  ed.  94 

338,  353 

Buchanan  v.  Deshon,  1  Har.  &  G.  (Md.)  280 221,  226,  227 

Buchanan  v.  Smith,  43  Miss.  91 33,  34 

Buck  v.  Holloway,  2  J.  J.  Marsh.  164 382 

Bulkley  's  Case,  8  Ct.  of  Cl.  519 587 

Bunton  v.  United  States,  62  Fed.  172 : 580 

Burchard,  The,  42  Fed.  608 212,  447 

Burgess  v.  Gray,  16  How.  48,  14  L.  ed.  839 281 

Burk  v.  Brown,  2  Atk.  397 221 

Burn  v.  Bletcher,  23  U.  C.  Q.  B.  28 444 

Burnside  v.  Matthews,  54  N.  Y.  78 227 

Burrow  v.  Burrow,  98  Iowa,  400,  67  N.  W.  287 223,  250 

Burrows-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  4  Sup.  Ct.  Kep. 

279,  28  L.  ed.  349 80 

Burthe  v.  Denis,  133  U.  S.  514,  10  Sup.  Ct.  Kep.  335,  33  L.  ed.  768 110 

Burton  v.  Burton,  1  Abb.  Dec.  (N.  Y.)  271 227 

Burton  v.  Burton,  26  How.  Pr.  (N.  Y.)  474 227 

Bush  v.  United  States,  29  Ct.  of  Cl.  144 . 91 

Buttz  v.  Northern  Pac.  R.  R.  Co.,  119  U.  S.  55,  7  Sup.  Ct.  Rep.  105,  30 

L.  ed.  330 379 

Byers,  Ex  parte,  32  Fed.  408 130,  388 

Byrne  v.  Alas,  74  Cal.  635,  16  Pac.  523 292,  382 

Byrne  v.  Herran,  1  Daly  (N.  Y.),  344 399 

Calder  's  Case,  6  Op.  Atty.  Gen.  91 344 

Caldwell  v.  Cuyahoga  County,  8  Ohio  Cir.  Dec.  56 552 

Caldwell  v.  Robinson,  59  Fed.  654 382 

Caldwell  v.  State,  1  Stew.  &  P.  (Ala.)  327 385 

Calhoun  v.  Kellogg,  41  Ga.  240 34 

California  Powder  Works  v.  Davis,  151  U.  S.  393,  38  L.  ed.  206,  14  Sup. 

Ct.  Rep.  352 103,  104 

Callsen  v.  Hope,  75  Fed.  758 273 

Camp  v.  Ward,  69  Vt.  289,  60  Am.  St.  Rep.  931,  37  Atl.  748 440 

Campbell  v.  Steamer  Uncle  Sam, -McAll.  77,  Fed.  Cas.  No.  2372 454 

Cantini  v.  TUlman,  54  Fed.  969 209 

Cardwell  v.  American  River  Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct.  Rep.  423, 

28  L.  ed.  959 172 

Carey  v.  Brown,  58  Cal.  180 292 

Carey  v.  Houston  &  T.  R.  Co.,  150  U.  S.  170,  14  Sup.  Ct.  Rep.  63,  37  L. 

ed.  1041 113 

Carlisle  v.  United  States,  29  Ct.  of  Cl.  414 587 

Carlow  v.  Aultman,  28  Neb.  672,  44  N.  W.  873 221,  222 

Carneal  v.  Banks,  10  Wheat.  181,  6  L.  ed.  297 132,  234,  238 


xxvi  TABLE  OF  CASES  CITED. 

SECTION 

Carpentier  v.  Montgomery,  13  Wall.  480,  20  L.  ed.  698 292 

Carr  v.  State,  127  Ind.  218,  22  Am.  St.  Eep.  624,  26  N.  E.  783,  11  L.  E. 

A.  375 580 

Carrier,  In  re,  57  Fed.  578 344 

Carter  v.  Territory,  1  N.  Mex.  317 469 

Case  v.  Toftus,  14  Saw.  217,  39  Fed.  733,  5  L.  E.  A.  688 378 

Castrique  v.  Imrie,  L.  E.  4  H.  L.  414 435,  444 

Castro  v.  De  Uriarte,  16  Fed.  93 115,  176 

Catron  v.  Laughlin,  11  N.  Mex.  604,  72  Pac.  26 281 

Cavneac  v.  Banks,  10  Wheat.  189,  6  L.  ed.  297 240 

Central  Colorado  Imp.  Co.  v.  Pueblo  County,  95  U.  S.  259,  24  L.  ed.  495 .  .  293 

Central  E.  etc.  Co.  v.  Ward,  37  Ga.  515 32 

Cessna  v.  United  States,  169  U.  S.  165,  18  Sup.  Ct.  Eep.  314,  42  L.  ed. 

702 293 

Chadbourne  v.  Newcastle,  48  N.  H.  196 546,  552,  553 

Chae  Chan  Ping,  In  re,  36  Fed.  431,  13  Saw.  486 189 

Chae  Chan  Pang  v.  United  States,  130  U.  S.  581,  9  Sup.  Ct.  Eep.  623, 

32  L.  ed.  1068 186,  191,  196 

Chapman  v.  Toy  Long,  Fed.  Cas.  No.  2610,  4  Saw.  28 201 

Chappel  v.  United  States,  34  Fed.  673 589 

Chappell  v.  Bradshaw,  128  U.  S.  134,  9  Sup.  Ct.  Eep.  40,  32  L.  ed.  370.  .  211 

Chappell  v.  Doe,  49  Ala.  155 34 

Chappell  Chemical  Co.  v.  Sulphur  Mines  Co.,  172  U.  S.  471,  19  Sup.  Ct. 

Eep.  267,  43  L.  ed.  517 104 

Charleville  v.  Chouteau,  18  Mo.  493 281 

Chase  v.  United  States,  155  U.  S.  489,  15  Sup.  Ct.  Eep.  174,  39  L.  ed.  234. .  590 

Chaves  v.  Whitney,  4  N.  Mex.  178,  16  Pac.  608 288,  293 

Chavez  v.  Chavez  De  Sanchez,  7  N.  Mex.  58-82,  32  Pac.  144 277,  281,  289 

Cheatham,  Ex  parte  (Tex.  Grim.  App.),  95  N.  W.  1077 342 

Cheely  v.  Clayton,  110  U.  S.  701,  4  Sup.  Ct.  Eep.  328,  28  L.  ed.  298 435 

Chepley  v.  Farris,  45  Cal.  538 281,  284,  285 

Cherokee  Nation  v.  Georgia,  5  Pet.  48,  8  L.  ed.  42 383,  384 

Cherokee  Nation  v.  Georgia,  5  Pet.  60,  8  L.  ed.  25 2 

Cherokee  Nation  v.  Kansas  Ey.  Co.,  135  U.  S.  653,  10  Sup.  Ct.  Eep.  970, 

34  L.  ed.  301 385 

Cherokee  Nation  v.  Southern  Kansas  E.  Co.,  135  U.  S.  641,  JO  Sup.  Ct. 

Eep.  965,  34  L.  ed.  295 .' 393 

Cherokee  Tobacco,  The,  78  U.  S.  (11  Wall.)  616,  20  L.  ed.  227 94,  167,  168 

Chew  Heong  v.  United  States,  112  U.  S.  536,  5  Sup.  Ct.  Eep.  255,  28  L. 

ed.  770 2,  176,  177,  182,  183,  185,  186,  189 

Chicago  v.  Manhattan  Cement  Co.,  178  111.  372,  69  Am.  St.  Eep.  321, 

53  N.  E.  68,  45  L.  E.  A.  848 546,  552 

Chicago  League  Ball  Club  v.  Chicago,  77  111.  App.  124 545,  546 

Chin  A  On,  In  re,  18  Fed.  506,  9  Saw.  343 176 


TABLE  OP  CASES  CITED.  xxvii 

SECTION 

Chinese  Exclusion  Case,  The,  130  U.  S.  604,  9  Sup.  Ct.  Rep.  623,  32  L. 

ed.  1068 140,  175 

Chinese  Merchants'  Case,  7  Saw.  546,  13  Fed.  605 176,  177,  191 

Chinese  Waiter,  Case  of,  13  Fed.  286,  7  Saw.  536 189,  191 

Chinese  Wife,   Case  of  the,   21   Fed.   785 191 

Chin  King,  Ex  parte,  35  Fed.  354,  13  Saw.  333 187 

Chin  You  v.  United  States  (Jan.  6,  1908),  28  Sup.  Ct.  Rep.  201 193 

Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  ed.  234 150,  235,  238,  240,  53(3 

Chirac  v.  Chirac,  4  Wheat.  453,  4  L.  ed.  613 24(1 

Chirac  v.  Chirac,  8  Wheat.  464,  5  L.  ed.  662 246 

Chirac  v.  Chirac,  9  Wheat.  489,  6  L.  ed.  142 240 

Chirac  v.  Chirac,  10  Wheat.  181,  6  L.  ed.  297 240 

Choctaw  Nation  v.  United  States,  19  Ct.  of  01.  250 586 

Choctaw  Nation  v.  United  States,  119  U.  S.  1,  7  Sup.  Ct.  Rep.  75,  30 

L.  ed.  306 376,  391 

Chouteau  v.  Eckhart,  2  How.  344,  11  L.  ed.  293 281,  282,  283 

Chouteau  v.  United  States,  9  Pet.  138,  9  L.  ed.  78 273 

Chow  Goo  Pooi,  In  re,  25  Fed.  77 191 

Christian  etc.  Co.  v.  Coleman,  125  Ala.  158,  27  South.  786 441 

Chy  Lung  v.  Freeman,  92  U.  S.  279,  23  L.  ed.  550 150,  198 

Cienf uegos,  In  re,  62  Fed.  972 352 

City  of  Atchison  v.  Irvine,  9  Kan.  350 552 

City  of  Chicago   v.   Pennsylvania   Co.,   119   Fed.   497 554 

City  of  lola  v.  Birnbaum,  71  Kan.  600,  81  Pac.  198 552,  553,  554 

City  of  MadisonviUe  v.  Bishop,  113  Ky.  106,  67  S.  W.  269,  57  L.  R.  A. 

130 554 

Clark  v.  Bates,  1  Dak.  50,  46  N.  W.  512 167,  171 

Clark  v.  Clark,  17  How.  315,  15  L.  ed.  77 572 

Clark  v.  Commonwealth  of  Pennsylvania,  128  U.  S.  395,  9  Sup.  Ct.  Rep. 

113,   32  L.   ed.  487 104 

Clark  v.  Lockwood,  21  Cal.  220 292 

Clay  v.  Clay,  26  Tex.  24 221 

Clear  Lake  Water  Works  v.  Lake  County,  45  Cal.  90 552 

Clinton  Bridge,  The,  1  Woolw.  155,  Fed.  Cas.  No.  2900 168 

Clyde  v.  United  States,  13  Wall.  38,  20  L.  ed.  479 584 

Coburn  v.  San  Mateo  County,  75  Fed.  520 273,  274 

Coburn  v.  United  States,   75  Fed.  528 274 

Gofer  v.  United  States,  30  Ct.  of  01.  131 58fl 

Coffee  v.  Groover,  20  Fla.  81 127 

Ooffee  v.  Groover,  123  U.  S.  1,  8  Sup.  Ct.  Rep.  1-10,  31  L.  ed.  51-56. .   127,  275 

Cofrode  v.  Gartner,  79  Mich.  332,  44  N.  W.  623,  7  L.  R.  A.  511 219 

Cohens  v.  Virginia,  19  U.  S.   (6  Wheat.)   264,  5  L.  ed.  257 140,  183 

Cohn    v.    Jones,    100    Fed.    639 320,  338,  353 

Collins,   Ex  parte    (Cal.) ,   90   Pac.   827 341 

Collins,  Ex  parte,   154  Fed.   980 353 


xxviii  TABLE  OF  CASES  CITED. 

SECTION 

Colorado  Central  Con.  Min.  Co.  v.  Turck,  150  U.  S.  138,  14  Sup.  Ct.  Eep. 

35,  37  L.  ed.  1030 Ill 

Colorado  Fuel  Co.  v.  Maxwell  Land  Grant  Co.,  22  Colo.  71,  43  Pac.  556.  .  293 

Commissioners  of  Sinking  Fund  v.  Buckner,  48  Fed.  542 580 

Commonwealth  v.  Alger,  7  Cush.  (Mass.)  84 213 

Commonwealth  v.  Bristow,  6  Call  (Va.),  60 261,  266 

Commonwealth  v.  Deacon,  10  Serg.  &  E.  125 298 

Commonwealth  v.  Detwiller,  131  Pa.  614,  18  Atl.  990,  7  L.  E.  A.  357 229 

Commonwealth  v.  Hawes,  13  Bush  (Ky.),  697,  26  Am.  Eep.  242 

298,  305,  308,  336 

Commonwealth  v.  Kosloff,  5  Serg.  &  E.  (Pa.)  545 411 

Commonwealth  v.  Melton,  12  B.  Mon.  (Ky.),  212,  54  Am.  Dec.  522 240 

Commonwealth  v.  New  York  L.  E.  &  W.  E.  Co.,  114  Pa.  340,  7  Atl.  756.  .  224 

Commonwealth  v.  Paper,  1  Brewst.  263 467 

Commonwealth  v.  Shaw,  6  Grim.  L.  Mag.  (Pa.)  245 312 

Commonwealth  v.  Sheaf e,  6  Mass.  441 254 

Commonwealth  v.  Wright,  158  Mass.  151,  35  Am.  St.  Eep.  476,  33  N.  E.  83, 

19  L.  E.  A.  208 337 

Compagnie  Francaise  etc.  v.  State  Board  of  Health,  51  La.  Ann.  645,  72 

Am.  St.  Eep.  458,  25  South.  591,  56  L.  E.  A.  795 206 

Compagnie  Francaise  v.  State  Board  of  Health,  186  U.  S.  380,  22  Sup. 

Ct.  Eep.  811,  46  L.  ed.  1209 206,  207,  208 

Compo  v.  Jackson  Iron  Co.,  50  Mich.  583,  16  N.  W.  300 388 

Connolly  v.  Smith,  21  Wend.  (N.  Y.)  59 227 

Connor  v.  Scott,  4  Dill.  246,  Fed.  Gas.  No.  3119 107 

Connor  v.  United  States,  19  Ct.  of  Cl.  675 393 

Conserva,  The,  38  Fed.  434 451 

Contee  v.  Godfrey,  1  Cranch  C.  C.  479,  6  Fed.  Cas.  No.  3140 226 

Cook  v.  Hart,  146  U.  S.  183,  13  Sup.  Ct.  Eep.  43,  36  L.  ed.  934 311 

Cook  v.  Oliver,  1  Woods,  437,  6  Fed.  Cas.  No.  3164 34,  35 

Cook  v.  State,  71  Neb.  243,  98  N.  W.  810 410 

Cooley  v.  Port  Wardens,  12  How.  299,  13  L.  ed.  996 80 

Copeland  v.  Sauls,  46  N.  C.  70 227 

Coppell  v.  Hall,  7  Wall.  553,  19  L.  ed.  244 401,  402 

Corn  v.  Andre,  3  Pick.  224 221 

Cornet  v.  Winston,  2  Yerg.  (Tenn.)  144 264,  382 

Corries '  Case,  2  Bland  (Md.) ,  488 229 

Cortes,  In  re,  42  Fed.  47 317 

Cory  v.  Carter,  48  Ind.  327,  17  Am.  Eep.  738 160 

Cosgrove  v.  Cosgrove,  69  Conn.  416,  38  Atl.  219 226,  229 

Cosgrove  v.  Winney,  174  U.  S.  68,  19  Sup.  Ct.  Eep.  598,  43  L.  ed.  897 336 

Cotton  v.  United  States,  29  Ct.  of  Cl.  207 587 

Count  de  Toulouse  Lautrec,  In  re,  102  Fed.  878,  43  C.  C.  A.  42 315 

Courtney  v.  Turner,  12  Nev.  345 221 

Coveney  v.  Phiscator,  132  Mich.  258,  93  N.  W.  619 443 


TABLE  OF  CASES  CITED.  xxix 

SECTION 

Cowenia  v.  Hannah,  3  Or.  465 281 

Coxe  v.  Gulick,  10  N.  J.  L.  328 228 

Coy,  Ex  parte,  32  Fed.  911 336 

Cragin  v.  Powell,  128  U.  S.  G91,  9  Sup.  Ct.  Eep.  203,  32  L.  ed.  566 282 

Craig  v.  Leitensdorfer,  123  U.  S.  189,  8  Sup.  Ct.  Eep.  85,  31  L.  ed.  114. .  281 

Craig  v.  Leslie,  16  U.  S.  (3  Wheat.)  563,  4  L.  ed.  460 221,  226 

Craig  v.  Eadford,  16  U.  S.  (3  Wheat.)  594,  4  L.  ed.  467 221,  236 

Crane  v.  Eeeder,  21  Mich.  24,  4  Am.  Eep.  430 221,  255 

Crittenden,  5  Op.  Atty.  Gen.  345 132 

Crittenden,  5  Op.  Atty.  Gen.  550 132 

Cross,  In  re,  43  Fed.  520 312,  336 

Cross  v.  Del  Valle,  1  Wall.  (68  U.  S.)  8,  17  L.  ed.  515 221 

Crow  Dog,  Ex  parte,  109  U.  S.  570,  3  Sup.  Ct.  Eep.  396,  27  L.  ed.  1035. .  184 

Crusui  'a  Succession,  19  La.  Ann.  369 210 

Cruz  v.  Martinez,  53  Cal.  239 292 

Cryer  v.  Andrews,  11  Tex.  170 .' 226,  227,  469 

Crystal  Springs  Land  &  Water  Co.  v.  City  of  Los  Angeles,  76  Fed.  148 

102,  278 

Crystal  Springs  Land  &  W.  Co.  v.  Los  Angeles,  82  Fed.  117 102 

Cummings  v.  Missouri,  4  Wall.  320,  18  L.  ed.  356 198 

Cunningham  v.  Browning,  1  Bland  (Md.),  308 221 

Cunningham  v.  Macon  etc.  E.  E.  Co.,  109  U.  S.  450,  3  Sup.  Ct.  Eep.  295, 

27  L.  ed.  993 559 

Currin  v.  Finn,  3  Denio  (N.  Y.),  229 227 

Gushing,  6  Op.  Atty.  Gen.  85 301 

Gushing,  6  Op.  Atty.  Gen.  91 348 

Gushing,  6  Op.  Atty.  Gen.  148 131 

Gushing,  6  Op.  Atty.  Gen.  217 343,  358 

Gushing,  6  Op.  Atty.  Gen.  296 132 

Gushing,  6  Op.  Atty.  Gen,  500 357 

Gushing,  6  Op.  Atty.  Gen.  750 132 

Gushing,  7  Op.  Atty.  Gen.  342 405 

Gushing,  7  Op.  Atty.  Gen.  396 364,  366 

Gushing,  7  Op.  Atty.  Gen.  722 357 

Gushing,  8  Op.  Atty.  Gen.  (1856)  169,  215 309,  404 

Gushing,  8  Op.  Atty.  Gen.  240 342 

Gushing,  8  Op.  Atty.  Gen.  417 133 

Cushing  v.  Laird,  107  U.  S.  80,  2  Sup.  Ct.  Eep.  196,  27  L.  ed.  395 435 

Dallemagne  v.  Moisan,  197  U.  S.  169,  25  Sup.  Ct.  Eep.  422,  49  L.  ed.  709.   453 

Daniels  v.  Hilgard,  77  HI.  640 213 

Daniels  v.  Tearney,  102  U.  S.  419,  26  L.  ed.  187 34 

Darlington  v.  Mayor  of  New  York,  31  N.  Y.  164,  88  Am.  Dec.  248 552 

Davis  v.  Concordia,  9  How.  280,  13  L.  ed.  138 86,  87,     91 

Davis  v.  Hall,  1  Nott.  &  M.  (S.  C.)  292 226 


xxx  TABLE  OF  CASES  CITED. 

SECTION 

Davis  v.  Packard,  7  Pet.  276,  8  L.  ed.  684 411,  412 

Davis  v.  Parish  of  Concordia,  9  How.  280,  13  L.  ed.  138 132 

Dawson,  In  re,  101  Fed.  253 361 

Dawson  v.  Godfrey,  4  Cranch,  321,  2  L.  ed.  634 226 

De  Arguello  v.  Greer,  26  Cal.  638  281,  286,  287 

Debs,  In  re,  158  U.  S.  564,  15  Sup.  Ct.  Rep.  900,  39  L.  ed.  1092 159 

De  Castro  v.  Fellom,  135  Cal.  225,  67  Pae.  142  292 

De  Cosse  Brissac  v.  Eathbone,  6  Hurl.  &  N.  301 444 

De  Geofroy  v.  Eiggs,  133  U.  S.  258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed. 

642 125,  156,  230,  233,  240 

De  Giacomo,  In  re,  12  Blatchf.  391,  Fed.  Cas.  No.  3747 92,  321 

De  Give  v.  Grand  Eapids  Furniture  Co.,  94  Ga.  605,  21  S.  E.  582 414 

De  Graff  v.  Wendt,  164  111.  485,  45  N.  E.  1075 226,  228 

De  Kalb  County  v.  Smith,  47  Ala.  407  547 

De  la  Croix  v.  Chamberlain,  12  Wheat.  599,  6  L.  ed.  741 281,  282 

De  la  Guerra  v.  Santa  Barbara,  117  Cal.  533,  49  Pac.  735 286 

Delassus  v.  United  States,  9  Pet.  117,  9  L.  ed.  71 132,  273,  275 

De  Lima  v.  Bidwell,  182  U.  S.  1,  198,  21  Sup.  Ct.  Eep.  743,  45  L.  ed.  1041, 

1056 84,  86,  140,  185 

De  Merle  v.  Mathews,  26  Cal.  455 222,  226 

Den  v.  Brown,  7  N.  J.  L.  305 227 

Deni  v.  Pennsylvania  E.  E.  Co.,  181  Pa.  525,  59  Am.  St.  Eep.  676,  37  Atl. 

558 215 

Dent  v.  Emmeger,  14  Wall.  308,  20  L.  ed.  838 273,  281,  283 

Desbois'  Case,  2  Mart.  (La.)  185 469 

Descottes  v.  Talvande,  2  McMull.  (S.  C.)  300 226 

De  Toro  v.  Eobinson,  91  Cal.  371,  27  Pac.  671 285,  286,  288 

Dewing  v.  Perdicaris,  6  Otto,  193,  24  L.  ed.  654 31,  32 

Dewit's  Case,  3  Op.  Atty.  Gen.  661 298 

Dewitt  v.  Buchanan,  54  Barb.  33 219 

De  Wolf  v.  Middleton,  18  E.  I.  814,  26  Atl.  44,  31  Atl.  271,  31  L.  E.  A. 

146 228 

Dillon,  In  re,  7  Saw.  561,  7  Fed.  Cas.  No.  3914 418,  423 

Discontento  Gesellschaft  v.  Umbreit,  9  Advance  Sheets  U.  S.  Sup.  Ct.  337 

(U.  S.  Feb.  24,  1908)  161 

Disconto  Gesellschaft  v.  Umbreit,  127  Wis.  651,  115  Am.  St.  Eep.  1063,  106 

N.  W.  821 218 

Diamond  Eings,  The,  183  U.  S.  176,  22  Sup.  Ct.  Eep.  59,  46  L.  ed.  138 ...  69 

Dockstader  v.  Kershaw,  4  Penne.  (Del.)  398,  55  Atl.  341 242 

Doe  v.  Acklan,  2  Barn.  &  C.  779 226 

Doe  v.  Braden,  16  How.  635,  14  L.  ed.  1090 65,  93,  96,  128,  132 

Doe  v.  Clark,  1  U.  C.  Q.  B.  37 226 

Doe  v.  Cleveland,  6  U.  C.  Q.  B.,  O.  S.,  117 221 

Doe  v.  Dickson,  2  U.  C.  Jur.  (Canada)  326 221 

Doe  v.  Eslava,  9  How.  421,  13  L.  ed.  200 275,  288 


TABLE  OF  CASES  CITED.  xxxi 

SECTION 

Doe  v.  Higgins,  39  Ala.  9 281 

Doe  v.  Jones,  11  Ala.  63 281 

Doe  v.  Jones,  4  Term  Kep.  300 226 

Doe  v.  Latimer,  2  Fla.  71 278 

Doe  v.  Lazenby,  Smith  (Ind.),  203,  1  Ind.  234 228 

Doe  v.  Mobile,  9  How.  451,  13  L.  ed.  212 288 

Doe  v.  Eobertson,  24  U.  S.  (11  Wheat.)  332,  6  L.  ed.  488 221 

Doe  v.  Eoe,  4  Penne.  (Del.)  396,  55  Atl.  341 242 

Doe  v.  Eoe,  13  Fla.  602 288 

Doehrel  v.  Hillmer,  102  Iowa,  169,  71  N.  W.  204 223,  250 

Dominguez  v.  Botiller,  74  Cal.  457,  16  Pac.  241 286,  289 

Donoghue  v.  Philadelphia  County,  2  Pa.  230 549 

Donovan  v.  Pitcher,  53  Ala.  411,  25  Am.  Kep.  634 221,  226 

Doolan  v.  Carr,  125  U.  S.  618,  8  Sup.  Ct.  Eep.  1228,  31  L.  ed.  844 291 

Dooley  v.  United  States,  182  U.  S.  222,  21  Sup.  Ct.  Eep.  762,  45  L.  ed. 

1074 86,  91 

Dos  Santos,  Ex  parte,  2  Brock.  493,  Fed.  Cas.  No.  4016 308 

Douglas  v.  Kentucky,  168  U.  S.  488,  8  Sup.  Ct.  Eep.  199,  42  L.  ed.  553 52 

Dow  v.  Johnson,  100  U.  S.  158,  25  L.  ed.  632 434 

Dower  v.  Eichards,  151  U.  S.  666,  14  Sup.  Ct.  Eep.  455,  38  L.  ed.  308 104 

Downes  v.  Bidwell,  182  U.  S.  244,  247,  21  Sup.  Ct.  Eep.  770,  45  L.  ed. 

1088 86,  140,  294 

Draper  v.  United  States,  164  U.  S.  243,  17  Sup.  Ct.  Eep.  108,  41  L.  ed. 

420 171 

Dringer  v.  Eeceiver,  42  N.  J.  Eq.  580,  8  Atl.  815 440 

Dudley  v.  Grayson,  22  Ky.  (6  T.  B.  Mon.)  259 221 

Dufour  's  Succession,  19  La.  Ann.  391 210 

Dunbar  v.  United  States,  22  Ct.  of  Cl.  109 583 

Duncan  v.  Beard,  2  Nott  &  McC.  400 263 

Dunlop  v.  Commonwealth,  2  Call  (Va.),  284 223 

Dunnington  v.  United  States,  24  Ct.  of  Cl.  404 584 

Dunstan  v.  Higgins,  138  N.  Y.  70,  34  Am.  St.  Eep.  431,  33  N.  E.  729,  30 

L.  E.  A.  668  440 

Dupasseur  v.  United  States,  19  Ct.  of  Cl.  1 584 

Duplantier  v.  United  States,  27  Ct.  of  Cl.  323 586 

Dupont,  Ex  parte,  Harp.  Eq.  5 263 

Dupont  v.  Pichon,  4  Dall.  321,  1  L.  ed.  851 411 

Durand  v.  Halback,  1  Miles  (Pa.),  46  411 

Durfee  v.  Plaisted,  38  Cal.  80 291 

Duryea  v.  New  York,  10  Daly  (N.  Y.),  300 , 554 

East  Haven  v.  Hemingway,  7  Conn.  186 382 

Eaton  v.  West  Virginia,  91  Fed.  766,  61  U.  S.  App.  676,  34  C.  C.  A.  68. .  312 

Educational  Society  v.  Varney,  54  N.  H.  376 227 

Edwards  v.  James,  7  Tex.  372 288 


xxxii  TABLE  OF  CASES  CITED. 

SECTION 

Edye  v.  Eobertson,  112  U.  S.  580,  5  Sup.  Ct.  Eep.  247,  28  L.  ed.  804.  .  .139,  175 

Ehrlich  v.  Weber,  114  Term.  711,  88  S.  W.  188 128 

Eldon  v.  Doe,  6  Blatchf.  (Ind.)  341 226 

Elizabeth,  The,  Blatchf.  Pr.  253,  Fed.  Cas.  No.  4350 450 

Elk  v.  Wilkins,  112  U.  S.  100,  5  Sup.  Ct.  Eep.  44,  28  L.  ed.  645 385,  386 

Ellis  v.  Jacob,  45  N.  Y.  Supp.  177,  17  App.  Div.  471 365 

Elmondorff  v.  Carmichael,  3  Litt.  (Ky.)  472,  14  Am.  Dec.  86 221,  226 

Elwin  Kreplin,  The,  9  Blatchf.  438,  Fed.  Cas.  No.  4426 212,  447,  338 

Ely  v.  Niagara  County,  36  N.  Y.  297 554 

Ely  v.  United  States,  171  U.  S.  220,  18  Sup.  Ct.  Eep.  840,  43  L.  ed.  142 .  .   293 

Emeric  v.  Penniman,  26  Cal.  124 292 

Emmett  v.  Emmett,  14  Lea  (Tenn.),  369   227 

English  v.  United  States,  29  Ct.  of  Cl.  68 123 

Ennas  v.  Franklin,  2  S.  C.  (Brev.)  398 226 

Ennis  v.  Smith,  14  How.  400,  14  L.  ed.  472 435 

Enos  v.  Sowle,  2  Hawaiian,  332 448 

Erie  Ey.  Co.  v.  State,  31  N.  J.  L.  531,  86  Am.  Dec.  226 240 

Escanaba  etc.  v.  Chicago,  107  U.  S.  678,  2  Sup.  Ct.  Eep.  185,  27  L.  ed. 

442   170,172 

Eslava  v.  Doe,  7  Ala.  543 273 

Estrada  v.  Murphy,  19  Cal.  269 *. 281,  284,  291,  292 

Estrella,  The,  4  Wheat.  298,  4  L.  ed.  574 434 

Etheridge  v.  Malempre,  18  Ala.  565 . . . ; 226 

Ettenheimer  v.  Heffernan,  66  Barb.  374 226 

Eustis  v.  Bolle,  150  U.  S.  361,  14  Sup.  Ct.  Eep.  131,  37  L.  ed.  1111 103,  104 

Evans '  Appeal,  51  Conn.  435   . . 229 

Evans  v.  Lee,  11  Neb.  194 458 

Evans  v.  Eichmond,  1  Chase,  551,  8  Fed.  Cas.  No.  4570 33,     34 

Exchange,  The,  7  Cranch,  144,  3  L.  ed.  296 129 

Ezeta,  In  re,  62  Fed.  967   312,  319,  328,  330,  344,  350,  351 

Fairfax  v.  Hunter,  7  Cranch,  603,  3  L.  ed.  453 150,  223,  226,  234 

Farez,  Case  of,  7  Blatchf.  34,  Fed.  Cas.  No.  4644 .115,  343 

Farez,  In  re,  7  Blatchf.  345,  Fed.  Cas.  No.  4645 319,  343,  345,  350,  352 

Farez,  In  re,  7  Blatchf.  491,  Fed.  Cas.  No.  4646 351 

Farley  v.  Shippen,  Wythe  (Va.) ,  254 227 

Farmers'  L.  &  T.  Co.  v.  McKinney,  6  McLean  (U.  S.),  1,  8  Fed.  Cas.  No. 

4667 221 

Farrar  v.  Dean,  24  Mo.  16 .228 

Fattosini's  Estate,  In  re,  67  N.  Y.  Supp.  1119,  33  Misc.  Eep.  18 131,  202 

Fauvia  v.  New  Orleans,  20  La.  Ann.  410 546 

Fealey  v.  Fealey,  104  Cal.  359,  43  Am.  St.  Eep.  114,  38  Pac.  50 440 

Fellows  v.  Denniston  (The  New  York  Indians),  72  U.  S.  (5  Wall.)  761, 

18  L.  ed.  708 170 

Ferguson  v.  Franklins,  6  Munf .  (Va.)  305 221 


TABLE  OF  CASES  CITED.  xxxiii 

SECTION 

Ferguson  v.  Mahon,  11  Ad.  &  E.  179 444 

Ferguson  v.  Neville,  61  Cal.  356 221 

Ferguson  v.  Eoss,  38  Fed.  163,  3  L.  E.  A.  324 559 

Ferrie  v.  Public  Administrator,  3  Bradf .  Sur.  249 202 

Ferris  v.  Coover,  10  Cal.  589 273 

Fetter,  In  re,  23  N.  J.  L.  (3  Zab.)  311,  57  Am.  Dec.  382 308 

Field  v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  Eep.  495,  36  L.  ed.  294 73,  74 

Fink  v.  City  of  New  Orleans,  110  La.  84,  34  South.  138  553 

Fiott  v.  Commonwealth,  12  Gratt.  (Va.)  564 266 

First  Nat.  Bank  v.  Adams,  138  111.  483,  28  N.  E.  955 246 

Fischl,  Ex  parte  (Tex.  Crim.  App.),  100  S.  W.  773 347 

Fisher  v.  Cockerill,  5  Pet.  257,  8  L.  ed.  117 106 

Fisher  v.  Fielding,  67  Conn.  91,  52  Am.  St.  Eep.  270,  34  Atl.  714,  32  L. 

K,  A.  236 441 

Fisher  v.  Harnden,  1  Paine  C.  C.  55,  Fed.  Cas.  No.  4819 132,  227 

Fitton,  In  re,  45  Fed.  472 336 

Fitzgerald  v.  Garvin,  T.  U.  P.  Charlt.  (Ga.)  281 221 

Fleeger  v.  Poole,  1  McLean,  185,  Fed.  Cas.  No.  4860 127 

Fleliher  v.  Peck,  6  Cranch,  142,  3  L.  ed.  142 383 

Florida  v.  Georgia,  58  U.  S.  478,  15  L.  ed.  181 44 

Florio,  In  re,  43  Fed.  115 175 

Folsom  v.  New  Orleans,  28  La.  Ann.  936 546 

Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  13  Sup.  Ct.  Eep.  1025,  37 

L.  ed.  916 140,  175,  186,  191,  196,  299,  331 

Fook,  In  re,  65  How.  Pr.  404 191 

Forbes  v.  Scannell,  13  Cal.  242 240 

Ford  v.  Surget,  7  Otto,  594,  24  L.  ed.  1018 31 

Fortunich  v.  New  Orleans,  14  La.  Ann.  115 554 

Foss,  Ex  parte,  102  Cal.  347,  41  Am.  St.  Eep.  182,  36  Pac.  669,  25  L.  E. 

A.  593 305 

Foss  v.  Crisp,  20  Pick.  (Mass.)  121 227 

Foss  v.  Hinkell,  78  Cal.  158,  20  Pac.  393 291 

Foster  v.  Davis,  1  Litt.  (Ky.)  71 401 

Foster  v.  Neilson,  2  Pet.  253,  7  L.  ed.  411 85,  87,  96,. 132,  168,  169,  185 

Fowler  v.  Lamson,  164  U.  S.  255,  17  Sup.  Ct.  Eep.  113,  41  L.  ed.  425 104 

Fox  v.  Southack,  12  Mass.  143 223,  254 

Fox  v.  Willis,  24  Ky.  Law  Eep.  1773,  72  S.  W.  330 456 

Fox  v.  Willis,  24  Ky.  Law  Eep.  2173,  73  S.  W.  743 456 

Foxwell  v.  Craddock,  1  Pat.  &  H.  (Va.)  250 266 

Frank,  In  re,  107  Fed.  272 183 

Franklin  Sugar  Eef.  Co.  v.  United  States,  202  U.  S.  580,  26  Sup.  Ct.  Eep. 

720,  50  L.  ed.  1153 89 

Fraser  v.  McConway  &  Forley  Co.,  82  Fed.  257 195 

Prelinghuysen  v.  United  States,  110  U.  S.  63,  3  Sup.  Ct.  Eep.  462,  28  L. 

ed.  71 2,  60,  124 


xxxiv  TABLE  OF  CASES  CITED. 

SECTION 

Fremont  v.  United  States,  17  How.  553,  15  L.  ed.  241 288 

French  v.  Hopkins,  124  U.  S.  524,  8  Sup.  Ct.  Kep.  589,  31  L.  ed.  537 211 

Fretz  v.  Stover,  89  U.  S.  198,  22  L.  ed.  769 30 

Friend  v.  United  States,  29  Ct.  of  Cl.  495 393 

Frierson  v.  Presbyterian  Church,  7  Heisk.  705  .  •. 34 

Frisbie  v.  Whitney,  9  Wall.  187,  19  L.  ed.  668 291 

Fry  v.  Smith,  2  Dana  (Ky.),  38 226 

Furenes  v.  Mickelson,  86  Iowa,  508,  53  N.  W.  416 250 

Gaines  v.  Hale,  26  Ark.  183 387 

Gandolfo  v.  Hartman,  49  Fed.  181,  16  L.  E.  A.  277 217 

Garcia  v.  Lee,  12  Pet.  511,  9  L.  ed.  1176 85,  87 

Gardiner  v.  Miller,  47  Cal.  570 268 

Gardner  v.  Thomas,  14  Johns.  134,  7  Am.  Dec.  445 219 

Gee  Fook  Sing  v.  United  States,  49  Fed.  146,  1  C.  C.  A.  211,  7  U.  S.  App. 

27 - 188 

Geoffrey  v.  Kiggs,  133  U.  S.  258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed.  642.  .140,  150 
Gesellschaft  v.  Umbreit,  9  Advance  Sheets  U.  S.  Sup.  Ct.  337  (U.  S.  Feb. 

24,  1908)  161 

Giacomo,  In  re,  Fed.  Cas.  No.  3,747,  12  Blatchf.  391 92,  321 

Gianfortone  v.  New  Orleans,  61  Fed.  63,  24  L.  K.  A.  592 530 

Gibbs '  Case,  13  Ops.  Attys.  Gen.  19 124 

Gibson  v.  Everett,  41  S.  C.  22,  19  S.  E.  286 218 

Giles  v.  Little,  134  U.  S.  650,  10  Sup.  Ct.  Eep.  623,  33  L.  ed.  1064 107 

Gill  v.  Oliver's  Executors,  11  How.  529,  13  L.  ed.  808 108,  112 

Gittings  v.  Crawford,  Taney's  Dec.  (U.  S)  11,  Fed.  Cas.  No.  5465 401,  411 

Glass  v.  Blackman,  48  Ark.  50,  2  S.  W.  257 443 

Glenn  v.  United  States,  13  How.  250,  14  L.  ed.  133 281 

Godfrey  v.  Beardsley,  2  McLean,  418,  Fed.  Cas.  No.  5497 274 

Goetze  v.  United  States,  103  Fed.  72  115 

Goldfon  v.  Allegheny  County,  14  Pa.  Super.  Ct.  75 366 

Gonzalez,  In  re,  118  Fed.  941 295 

Goodell  v.  Jackson,  20  Johns.  693,  11  Am.  Dec.  351 221 

GoodfeUow  v.  Muckey,  1  MeCrary,  244,  Fed.  Cas.  No.  5537 383 

Goodtitle  v.  Kibbe,  9  How.  471,  13  L.  ed.  220 274 

Gordon  v.  Kerr,  1  Wash.  C.  C.  322,  10  Fed.  Cas.  No.  5611 132,  262 

Governeur  v.  Eobertson,  11  Wheat.  332,  6  L.  ed.  488 , . .  221 

Graham  v.  Stucken,  4  Blatchf.  50,  Fed.  Cas.  No.  5677 411 

Granfortone  v.  New  Orleans,  61  Fed.  64,  24  L.  E.  A.  592 546 

Grant  v.  Jaramillo,  6  N.  Mex.  313,  28  Pac.  508  281,  289 

Graves  v.  The  W.  F.  Babcock,  79  Fed.  92 454 

Gray  v.  Kauffman,  82  Tex.  65,  17  S.  W.  513 222 

Great  Falls  Mfg.  Co.  v.  Attorney  General,  124  U.  S.  581,  8  Sup.  Ct.  Eep. 

631,  31  L.  ed.  527 584 

Great  West  Ins.  Co.  v.  United  States,  19  Ct.  of  Cl.  206 60 


TABLE  OF  CASES  CITED.  xxxv 

SECTION 

Great  Western  Ins.  Co.  v.  United  States,  112  U.  S.  193,  5  Sup.  Ct.  Eep.  99, 

28  L.  ed.  687 583 

Great  Western  By.  Co.  v.  Miller,  19  Mich.  305 219 

Greencastle's  Bank  Case,  15  Ct.  of  Cl.  225 584 

Greenheld  v.  Morrison,  21  Iowa,  538 229 

Greenia  v.  Greenia,  14  Mo.  526 229 

Greer  v.  Sankston,  26  How.  Pr.  (N.  Y.)  471 227 

Gregory  v.  McPherson,  13  Cal.  562 288,  292 

Gresar  v.  McDowell,  6  Wall.  363,  18  L.  ed.  863 291 

Gresham  v.  Rickenbacher,  28  Ga.  227 225 

Griffin  v.  Dominguez,  2  Duer   (N.  Y.),  656 411 

Griffith,  In  re,  84  Cal.  113,  23  Pac.  529 440 

Griggs,  22  Op.  Atty.  Gen.  617 279 

Grin  v.  Shine,  187  U.  S.  195,  23  Sup.  Ct.  Eep.  98,  47  L.  ed.  130.  .343,  345,  351 

Grisar  v.  McDowell,  6  Wall.  363,  18  L.  ed.  863 132 

Groover  v.  Coffee,  19  Fla.  79 127 

Groves  v.  Gordon,  3  Brev.  (S.  C.)  245 221,  226 

Gunn  v.  Bates,  6  Cal.  263 288 

Guyer  v.  Smith,  22  Md.  239,  85  Am.  Dec.  650 221,  227 

Hadden  v.  Collector,  5  Wall.  107,  18  L.  ed.  518 169 

Hall  v.  Patterson,  45  Fed.  354 336 

Hall  v.  Eoot,  19  Ala.  386 277,  281 

Halstead  v.  Lake  County,  56  Ind.  363 221 

Halyburton  v.  Kershaw,  3  Desaus.  (S.  C.)  105 226 

Hamilton  v.  Avery,  20  Tex.  612 281 

Hamilton  v.  Eaton,  2  Mart.  (1  N.  C.)  1,  1  Hughes,  249,  Fed.  Gas.  No. 

5980 : 261 

Hamilton  v.  Vicksburg  etc.  E.  E.  Co.,  119  U.  S.  285,  7  Sup.  Ct.  Eep. 

208,  30  L.  ed.  395 173 

Hammekin  v.  Clayton,  2  Woods  (U.  S.),  336,  11  Fed.  Cas.  No.  5996.  .  222,  225 

Hanauer  v.  Doane,  79  U.  S.  342,  20  L.  ed.  439 30 

Hanauer  v.  Woodruff,  82  U.  S.  439,  21  L.  ed.  224 30 

Hancock  v.  McKinney,  7  Tex.  384 281,  288 

Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157 227 

Harden  v.  Fisher,  1  Wheat.  300,  4  L.  ed.  96 236 

Hardy  v.  De  Leon,  5  Tex.  211 227,  288 

Harf ord  v.  United  States,  8  Cranch,  109,  3  L.  ed.  504 184 

Harlan  v.  State,  41  Miss.  566 32 

Harley  v.  State,  40  Ala.  689 221 

Harney  v.  Donohoe,  97  Mo.  141,  10  S.  W.  191 226,  229 

Harrison  v.  Walton,  95  Va.  726,  64  Am.  St.  Eep.  835,  30  S.  E.  374,  41  L. 

E.  A.  703 440 

Hart  v.  Bridgeport,  13  Blatchf.  289,  Fed.  Cas.  No.  6149 545 

Hart  v.  Burnett,  15  Cal.  530 292 


xxxvi  TABLE  OF  CASES  CITED. 

SECTION 

Hart  v.  Hart,  2  Desaus.  Eq.  57 263 

Hartley  v.  Brown,  51  Cal.  465 292 

Harvey  v.  Barker,  126  Cal.  272,  58  Pac.  696 286 

Hastings  v.  McGoogin,  27  Cal.  85 291 

Hatch  v.  Burroughs,  1  Woods,  439,  11  Fed.  Cas.  No.  6203 33 

Hauenstein  v.  Lynham,  100  U.  S.  483,  25  L.  ed.  628 

125,  137,  227,  232,  233,  238,  240,  246,  247,  250 

Haver  v.  Yaker,  9  Wall.  32,  19  L.  ed.  571 85,  86,  87,  91,  132 

Hawkins  v.  Filkins,  24  Ark.  286 32 

Hawkins  v.  Mitchell,  34  Fla.  421,  16  South.  316 580 

Hayner  v.  Stanly,  8  Saw.  214,  13  Fed.  217 292 

Hays  v.  Steiger,  156  U.  S.  387,  15  Sup.  Ct.  Eep.  412,  30  L.  ed.  463 291 

Head  Money  Cases,  112  U.  S.  580,  5  Sup.  Ct.  Eep.  247,  28  L.  ed.  798 

94,  168,  246 

Heeney  v.  Brooklyn  Ben.  Soc.,  33  Barb.  360 221,  226 

Heitz,  In  re,  111  U.  S.  766,  4  Sup.  Ct.  Kep.  698,  28  L.  ed.  592 400 

Henderson  v.  Henderson,  6  Ad.  &  E.,  N.  S.,  288 444 

Henderson  v.  Mayor  etc.,  92  U.  S.  268,  23  L.  ed.  543 198 

Henderson  v.  Tennessee,  10  How.  323,  13  L.  ed.  439 106,  107 

Henrich,  In  re,  5  Blatchf.  414,  Fed.  Cas.  No.  6369 343,  352 

Hepburn  v.  Dunlop,  1  Wheat.  179,  4  L.  ed.  65 221 

Herman,  Thomas,  Case  of,  12  Blatchf.  370,  Fed.  Cas.  No.  13,887 115 

Herris,  In  re,  32  Fed.  583 343 

Herskovitz,  In  re,  136  Fed.  713 346,  348 

Hibbs,  Ex  parte,  26  Fed.  421 336,  337 

Hickman  v.  Jones,  9  Wall.  197,  19  L.  ed.  551 32 

Hill  v.  Boylan,  40  Miss.  618 34 

Hill  v.  United  States,  149  U.  S.  593,  13  Sup.  Ct.  Rep.  1011,  37  L.  ed.  862. .  584 

Hilton  v.  Guyot,  159  U.  S.  113,  16  Sup.  Ct.  Eep.  139,  40  L.  ed.  95 

434,  435,  437,  438,  439 

Hinkle  v.  Shadden,  2  Swan  (Tenn.),  46 228 

Ho  Ah  Kow  v.  Nunan,  Fed.  Cas.  No.  6546,  5  Saw.  552 201 

Ho  King,  In  re,  14  Fed.  726,  8  Saw.  438 176,  191 

Holbrook  v.  Henderson,  6  N.  Y.  Super.  Ct.  (4  Sand.)  619 396 

Holcomb  v.  Phelps,  16  Conn.  132 435 

Holden  v.  Joy,  17  Wall.  211,  21  L.  ed.  523 94,  136,  139 

Holmes,  Ex  parte,  12  Vt.  631 37 

Holmes  v.  Jennison,  14  Pet.  571,  10  L.  ed.  579 2,  37,  139,  299 

Ho  Ngen  Jung  v.  United  States,  153  Fed.  232 188 

Hood  v.  Maxwell,  1  W.  Va.  219 32 

Hope  v.  Hope,  8  De  Gex,  M.  &  G.  731 446 

Hope,  The,  1  Dod.  226 449 

Hopkins  v.  Bell,  3  Cranch,  454,  2  L.  ed.  497 9 

Horn  v.  Lockhart,  84  U.  S.  570,  21  L.  ed.  657 28,  34 


TABLE  OF  CASES  CITED.  xxxvii 

SECTION 

Horner  v.  United  States,  143  U.  S.  578,  12  Sup.  Ct.  Eep.  525,  36  L.  ed. 

269 175 

Horner  v.  Webster,  33  N.  J.  L.  413 246 

Hornsby  v.  United  States,  10  Wall.  224,  19  L.  ed.  900 273 

Horton  v.  United  States,  31  Ct.  of  Cl.  48 584 

Hosmer  v.  Wallace,  97  U.  S.  575,  24  L.  ed.  1130 291 

Houston  v.  San  Francisco,  47  Fed.  339 286,  288 

Howard  v.  Ingersoll,  17  Ala.  780 122 

Howard  v.  Perry,  7  Tex.  259 281 

Hudson  v.  Guestier,  4  Cranch,  293,  2  L.  ed.  625 435 

Huggen's  Case,  2  Op.  Atty.  Gen.  452 298 

Hughes  v.  Edwards,  9  Wheat.  489,  6  L.  ed.  142 221,  227,  236,  240 

Hughes  v.  Lane,  6  Tex.  289 281 

x  Humphrey's  Administrator  v.  United  States,  Dev.  Ct.  of  01.,  sees.  678, 

679 115 

Hunt  v.  United  States,  29  Ct.  of  Cl.  68 123 

Hunt  v.  Warnicke,  Hard.  (Ky.)  61 226 

Huntington  v.  Texas,  16  Wall.  411,  21  L.  ed.  316 33 

Huse  v.  Glover,  119  U.  S.  547,  7  Sup.  Ct.  Eep.  315,  30  L.  ed.  490 173 

Hylton  v.  Brown,  1  Wash.  C.  C.  343,  Fed.  Gas.  No.  6982 86,  91,  132 

Hylton  v.  United  States,  3  Dall.  172,  1  L.  ed.  556 7 

lasigi,  In  re,  79  Fed.  751 401,  414 

Indiana  v.  Kentucky,  136  U.  S.  479,  10  Sup.  Ct.  Rep.  1051,  34  L.  ed.  329.  .  44 

Ingles  v.  Sailors'  Snug  Harbor,  28  U.  S.  (3  Pet.)  99,  7  L.  ed.  617 469 

Insurance  Co.  of  North  America  v.  McLimas,  28  Neb.  653,  44  N.  W.  991 . .  218 
Interstate  Land  Co.  v.  Maxwell  Land  Grant  Co.,  139  U.  S.  569,  11  Sup.  Ct. 

Rep.  656,  35  L.  ed.  278. 293 

Erwin  v.  McBride,  23  U.  C.  Q.  B.  (Canada)  570 221 

Irvine  v.  Leyh,  102  Mo.  207,  14  S.  W.  717 440 

Isaacs  v.  Richmond,  90  Va.  30,  17  S.  E.  760 33 

Jack  Sen,  In  re,  36  Fed.  441,  13  Saw.  510 189 

Jackson  v.  Adams,  7  Wend.  367 221 

Jackson  v.  Burns,  3  Binn.    (Pa.)    75 226 

Jackson  v.  Decker,  11  Johns.  418 256 

Jackson  v.  Lunn,  3  Johns.  Gas.  (N.  Y.)  109 226,  256 

Jackson  v.  Wright,  4  Johns.  75 256 

James,  In  re,  99  Cal.  376,  37  Am.  St.  Rep.  62,  33  Pac.  1123 435 

James  and  William,  The,  37  Ct.  of  01.  303 131 

Janis  v.  United  States,  32  Ct.  of  01.  407 393 

Jenkins  v.  Noel,  3  Stew.  (Ala.)  60 221 

Jenney  v.  Lawrens,  1  Speers,  356 221,  226 

Fohnson,  In  re,  167  U.  S.  126,  17  Sup.  Ct.  Rep.  735,  42  L.  ed.  105 312 


xxxviii  TABLE  OF  CASES  CITED. 

SECTION 

Johnson  v.  Browne,  205  U.  S.  309,  27  Sup.  Ct.  Rep.  539,  51  L.  ed.  816 

178,  179,  181 

Johnson  v.  Dalton,  1  Cow.  543,  13  Am.  Dee.  564 219 

Johnson  v.  Elkins,  1  App.  Gas.  (D.  C.)  430 222 

Johnson  v.  Mclntosh,  8  Wheat.  543,  5  L.  ed.  681 378,  383 

Johnson  v.  Eisk,  137  U.  S.  300,  11  Sup.  Ct.  Eep.  Ill,  34  L.  ed.  683 103 

Jones  v.  Borden,  5  Tex.  410 281 

Jones  v.  Le  Tombe,  3  Dall.  384,  1  L.  ed.  647 402 

Jones  v.  McMasters,  20  How.  (U.  S.)  8,  15  L.  ed.  805 227,  273,  275 

Jones  v.  Meehan,  175  U.  S.  1,  32,  20  Sup.  Ct.  Eep.  1,  44  L.  ed.  49 94,  392 

Jones  v.   Menard,   1   Tex.   771 281,  288 

Jones  v.  Minogue,  29  Ark.  637 223,  228 

Jones  v.  Montes,  15  Tex.  351 273,  278 

Jolly  v.  Hawesville,  89  Ky.  279,  12  S.  W.  313 546,  554 

Jost  v.  Jost,  1  Mackey,  487 127 

Kaine  's  Case,  14  How.  129,  14  L.  ed.  355 343 

Kaine,  Ex  parte,  3  Blatehf .  1,  Fed.  Cas.  No.  7597 115 

Kansas  Indians,  The,  72  U.  S.  (5  Wall.)  737,  18  L.  ed.  667 170 

Karrahoo  v.  Adams,  1  Dill.  346,  Fed.  Cas.  No.  7614 387 

Kaufman's  Case,  11  Ct.  of  Cl.  659 584 

Kaufman's  Case,  96  U.  S.  567,  24  L.  ed.  792 584 

Kay  v.  Watson,  17  Ohio,  27 226 

Keator  etc.  Co.  v.  St.  Croix,  72  Wis.  84,  7  Am.  St.  Eep.  850,  38  N.  W.  537.  174 

Keech  V.  Enriquez,  28  Fla,  597,  10  South.  91 288 

Keith  v.  Clark,  7  Otto,  454?  24  L.  ed.  1071 31,  140 

Kelley,  In  re,  25  Fed.  268 352 

Kelley,  In  re,  Fed.  Cas.  No.  7655,  2  Low.  339 319 

Kellyville  Coal  Co.  v.  Petrayis,  195  111.  215,  88  Am.  St.  Eep.  193,  63  N. 

E.  94 215 

Kemper  v.  Victoria,  3  Tex.  135 281 

Kendall's  Case,  14  Ct.  of  Cl.  122 587 

Kendall's  Case,  107  U.  S.  123,  2  Sup.  Ct.  Eep.  277,  27  L.  ed.  437 587 

Kennedy  v.  Wood,  20  Wend.  230 226 

Kennett  v.  Chambers,  55  U.  S.  (14  How.)  4-9,  .14  L.  ed.  321 217 

Kenton  v.  Baroness  of  Pontalba,  1  Eob.  343 123 

Keppel  v.  Petersburg  E.  Co.,  1  Chase,  167,  14  Fed.  Cas.  No.  7722 32,  35 

Ker  v.  Illinois,  119  U.  S.  436,  7  Sup.  Ct.  Eep.  225,  30  L.  ed.  421 

109,311,312 

Kerr  v.  White,  52  Ga.  362 229 

Kessler  v.  Best,  121  Fed.  439 426 

Kilpatrick  v.  Sisneros,  23  Tex.  113 273 

Kimball  v.  Semple,  25  Cal.  454 292 

Kingen  v.  Kelly,  3  Wyo.  577,  28  Pac.  40,  15  L.  E.  A.  193 312 


TABLE  OF  CASES  CITED.  xxxix 

SECTION 
Kinkead  v.  United  States,  150  U.  S.  483,  14  Sup.  Ct.  Eep.  172,  37  L.  ed. 

1152 273 

Kittridge  v.  Hebert,  9  La.  Ann.  154 288 

Klinger  v.  Missouri,  13  Wall.  257,  20  L.  ed.  635 103 

Knight  v.  United  States  Land  Assn.,  142  U.  S.  184,  12  Sup.  Ct.  Rep.  258, 

35  L.  ed.  982 274,  281,  282 

Knox,  23  Op.  Atty.  Gen.  535 363 

Kobogum  v.  Jackson  Iron  Co.,  76  Mich.  507,  43  N.  W.  605 385 

Konitzy  v.  Mayer,  49  N.  Y.  571 443 

Kopel,  In  re,  148  Fed.  505 342 

Kro janker,  In  re,  44  Fed.  482 350,  353 

Kull  v.  Kull,  37  Hun  (N.  Y.),  476 259 

Labade  v.  United  States,  31  Ct.  of  d.  205 393 

Lacoste  v.  Odam,  26  Tex.  458 226 

Lai  Moy  v.  United  States,  66  Fed.  955,  14  C.  C.  A.  283,  29  U.  S.  App. 

517 189,  191 

Lake  View  v.  Rose  Hill  Cemetery,  70  111.  191,  22  Am.  Rep.  71 213 

Lamar  v.  Micou,  112  U.  S.  453,  5  Sup.  Ct.  Rep.  221,  28  L.  ed.  751 27 

Lane,  Ex  parte,  6  Fed.  34 347 

Langdean  v.  Hanes,  21  Wall.  527,  22  L.  ed.  608 273 

Langdon  v.  Blackburn,  109  Cal.  26,  41  Pac.  816 440 

Langford  v.  United  States,  101  U.  S.  341,  25  L.  ed.  1010 584 

La  Republique  Francaise  v.  Schultz,  57  Fed.  37 99 

Larreau  v.  Davignon,  5  Abb.  Pr.,  N.  S.,  367 221,  226 

Las  Animas  Land  Grant  Co.  v.  United  States,  179  U.  S.  201,  21  Sup.  Ct. 

Rep.  92,  45  L.  ed.  153 293 

Lascelles  v.  Georgia,  148  U.  S.  541,  13  Sup.  Ct.  Rep.  687,  37  L.  ed.  551.  .  337 

Lascelles  v.  State,  90  Ga.  362,  35  Am.  St.  Rep.  219,  16  S.  E.  946 337 

Lau  Ow  Bew,  In  re,  141  U.  S.  583,  12  Sup.  Ct.  Rep.  43,  35  L.  ed.  868 186 

Lau  Ow  Bew,  In  re,  144  U.  S.  47,  12  Sup.  Ct.  Rep.  517,  36  L.  ed.  340 

186,  189,  191 

Laura,  The,  114  U.  S.  411,  5  Sup.  Ct.  Rep.  881,  29  L.  ed.  147 80 

Lavergne  v.  Elkins,  17  La.  220 288 

Lazier  v.  Wescott,  26  N.  Y.  146,  82  Am.  Dec.  404 440 

Leary  v.  Leary,  50  How.  Pr.  122 226 

Lee  v.  Salinas,  15  Tex.  495 227 

Lee  Foo  v.  United  States,  49  Fed.  148,  1  C.  C.  A.  210,  7  U.  S.  App.  31 188 

Lee  Kan  v.  United  States,  62  Fed.  914,  10  C.  C.  A.  669,  15  U.  S.  App. 

516 191 

Leeper  v.  Texas,  139  U.  S.  467,  11  Sup.  Ct.  Rep.  579,  35  L.  ed.  227 211 

Leese  v.  Clark,  3  Cal.  17 281 

Leese  v.  Clark,  20  Cal.  388 273,  281,  288 

Legal  Tender  Cases,  12  Wall.  555,  20  L.  ed.  287 140 

Legal  Tender,  The,  Wheat.  Dig.  302 115 


xl  TABLE  OF  CASES  CITED. 

SECTION 

Lehew  v.  Brummell,  103  Mo.  546,  23  Am.  St.  Eep.  895,  15  S.  W.  765,  11 

L.  E.  A.  828 160 

Leighton  v.  United  States,  29  Ct.  of  Cl.  288 93,  128 

Leitensdorfer  v.  Webb,  20  How.  177,  15  L.  ed.  891 273,  275 

Lem  King  Dun  v.  United  States,  49  Fed.  148,  1  C.  C.  A.  210 188 

Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  15  Sup.  Ct.  Rep.  967, 

39  L.  ed.  1082 186 

Lennon,  Ex  parte,  150  U.  S.  395,  14  Sup.  Ct.  Eep.  123,  37  L.  ed.  1121 . .  113 

Leonard  v.  United  States,  18  Ct.  of  Cl.  382 587 

Leong  Yick  Dew,  In  re,  19  Fed.  490 191 

Lewis  v.  Bell,  17  How.  616,  15  L.  ed.  203 572 

Le  Eoy  v.  Wright,  4  Saw.  530,  15  Fed.  Gas.  No.  8273 288 

Les  Bois  v.  Bramwell,  4  How.  449,  11  L.  ed.  1051 281 

Lew  Hew  Bon,  In  re,  47  Fed.  302 191 

Lew  Jim  v.  United  States,  66  Fed.  953,  14  C.  C.  A.  281,  29  U.  S.  App. 

513 189,  191 

License  Cases,  5  How.  603,  12  L.  ed.  300 239 

Limited  Tag,  Case  of,  21  Fed.  789 191 

Lincoln,  1  Op.  Atty.  Gen.  106 472 

Lincoln,  5  Op.  Atty.  Gen.  692 573 

Lin  Sing  v.  Washburn,  20  Cal.  534 240 

Little  v.  Watson,  32  Me.  214 122,  277 

Lobdell  v.  Clark,  4  La.  Ann.  99 281 

Lobrasciano,  Matter  of,  38  Misc.  Eep.  415,  77  N.  Y.  Supp.  1040 176,  202 

Lockhart  v.  Wills,  9  N.  Mex.  263,  50  Pac.  318 293 

Lockhart  v.  Willis,  9  N.  Mex.  348,  54  Pae.  337 289 

Lockwood  v.  Coysgarne,  3  Burr.  1676 399 

Logiorato,  Matter  of,  34  Misc.  Eep.  31,  69  N.  Y.  Supp.  507 202 

Loney,  In  re,  134  U.  S.  372,  10  Sup.  Ct.  Eep.  584,  33  L.  ed.  949 353,  354 

Long  v.  City  of  Neenah,  128  Wis.  40,  107  N.  W.  10 551 

Long  v.  Converse,  91  U.  S.  113,  23  L.  ed.  233 107 

Look  Tin  Sing,  In  re,  21  Fed.  905,  10  Saw.  353 187 

Los  Angeles  v.  Pomeroy,  125  Cal.  420,  58  Pac.  69 292 

Louisiana  v.  United  States,  22  Ct.  of  Cl.  85 583 

Louisiana  v.  Mayor  etc.  of  New  Orleans,  109  U.  S.  285,  3  Sup.  Ct.  Eep. 

211,  27  L.  ed.  936 545 

Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115  U.  S.  683,  6  Sup.  Ct.  Eep.  265, 

29  L.  ed.  510 52 

Love  v.  Hadden,  3  Brev.  1 263 

Love  v.  Pamplin,  21  Fed.  759 389 

Ludlow  v.  Van  Ness,  8  Bosw.  (N.  Y.)  178 229 

Luke  v.  Brooklyn,  43  Barb.  (N.  Y.)  54 546,  552 

Lum  Lin  Ying,  In  re,  59  Fed.  682 191 

Lynch  v.  Clarke,  1  Sand.  Oh.  (N.  Y.)  583 187,  226 

Lynch  v.  De  Bernal,  76  U.  S.  (9  Wall.)  315,  19  L.  ed.  714 101 


TABLE  OF  CASES  CITED.  xli 

SECTION 

Macartney  v.  Garbutt,  24  Q.  B.  D.  368 399 

Macdonnell,  In  re,  11  Blatchf .  170,  Fed.  Cas.  No.  8772 348,  350 

Maese  v.  Herman,  183  U.  S.  572,  22  Sup.  Ct.  Rep.  91,  46  L.  ed.  335 293 

Maguire  v.  Tyler,  8  Wall.  650,  19  L.  ed.  320 281,  288 

Mahon  v.  Justice,  127  U.  S.  700,  8  Sup.  Ct.  Rep.  1204,  32  L.  ed.  283 312 

Mahoney  v.  Van  Winkle,  21  Cal.  576 292 

Mali  Wong  Gee,  In  re,  47  Fed.  433 191 

Maiden  v.  Ingersoll,  6  Mich.  372 255 

Malarin  v.  United  States,  1  Wall.  282,  17  L.  ed.  594 t 292 

Mali  v.  Hudson  County  Common  Jailkeeper,  120  U.  S.  1,  7  Sup.  Ct.  Rep. 

385,  30  L.  ed.  565 130,  355 

Mannhardt  v.  Soderstrom,  1  Binn.  (Pa.)  138 411 

Manning  v.  French,  133  U.  S.  191,  10  Sup.  Ct.  Rep.  260,  33  L.  ed.  585.  .  211 

Manning  v.  San  Jacinto  Tin  Co.,  7  Saw.  418,  9  Fed.  726 292 

Manuel  v.  Wulff,  152  U.  S.  505,  14  Sup.  Ct.  Rep.  651,  38  L.  ed.  532 222 

Marden  v.  Ingersoll,  6  Mich.  373 128 

Marie,  The,  49  Fed.  286 212,  447 

Marquez  v.  Frisbie,  101  U.  S.  479,  25  L.  ed.  802 440 

Marquis  de  Circe 's  Succession,  Manning 's  Unreported  Cases,  412 210 

Marsh  v.  Brooks,  8  How.  232,  12  L.  ed.  1060 379 

Marshal  v.  Railroad  Co.,  16  How.  314,  14  L.  ed.  953 446 

Marshall  v.  City  of  Buffalo,  71  N.  Y.  Supp.  719,  63  App.  Div.  603 554 

Marshall  v.  City  of  Buffalo,  176  N.  Y.  545,  68  N.  E.  1119 554 

Marshall  v.  Conrad,  5  Call  (Va.),  364 221,  223 

Martin  v.  Board  of  Education,  42  W.  Va.  514,  26  S.  E.  348 160 

Martin  v.  Hunter,  1  Wheat.  304,  4  L.  ed.  97 80,  100,  108 

Martin  v.  Waddell,  16  Pet.  367,  10  L.  ed.  997 274 

Martin  v.  Woods,  9  Mass.  377 227 

Mason  v.  Blaireau,  2  Cranch,  240,  2  L.  ed.  266 219 

Massachusetts  Mut.  Ace.  Assn.  v.  Dudley,  15  App.  D.  C.  472 458 

Maxey  v.  O  'Connor,  23  Tex.  234 273,  278 

Maxwell  Land  Grant  Case,  121  U.  S.  325,  7  Sup.  Ct.  Rep.  1015,  30  L. 

ed.  949 293 

Maxwell  Land  Grant  Case,  122  U.  S.  365,  7  Sup.  Ct.  Rep.  1271,  30  L.  ed. 

1211 293 

May  v.  Breed,  7  Cush.  15,  54  Am.  Dec.  700 435 

May  v.  Specht,  1  Mich.  187 273 

Mayor  etc.  New  York  v.  Brady,  115  N.  Y.  615,  22  N.  E.  242 440 

McArthur  v.  United  States,  29  Ct.  of  Cl.  194 587 

McCabe,  Ex  parte,  46  Fed.  363,  12  L.  R.  A.  589 298,  308,  344 

McCarthy  v.  Marsh,  5  N.  Y.  263 467 

McClenaghan  v.  McClenaghan,  1  Strob.  Eq.  (S.  C.)  295,  47  Am.  Dec.  532 

221,  226 

McCoppin,  In  re,  5  Saw.  632,  Fed.  Cas.  No.  8713 467 

McCreery  v.  Allender,  4  Har.  &  McH.  409 221 


xlii  TABLE  OF  CASES  CITED. 

SECTION 

McCreery  v.  Wilson,  4  Har.  &  McH.  412 221 

McDonald  v.  Grand  Trunk  Ey.  Co.,  71  N.  H.  448,  93  Am.  St.  Eep.  550, 

59  L.  E.  A.  448,  52  Atl.  982 443 

McDonald  v.  McCoy,  121  Cal.  55,  53  Pac.  421 292 

McDonald  v.  Pearson,  114  Ala.  644,  21  South.  537 440 

McDonnell,  Case  of,  11  Blatchf.  79,  Fed.  Gas.  No.  8771 115 

McElrath  v.  United  States,  102  U.  S.  426,  26  L.  ed.  189 588 

McGahan  v.  Baylor,  32  Tex.  789 226 

McGee  v.  Doe,  9  Fla.  382 .' 288 

McKay  v.  Campbell,  2  Saw.  118,  Fed.  Gas.  No.  8840 187 

McKay  v.  Garcia,  6  Ben.  556,  Fed.  Gas.  No.  8844 411 

McKinney  v.  Saviego,  18  How.  235,  15  L.  ed.  365 226,  469 

McKinsey  v.  Harding,  16  Fed.  Gas.  (No.  8866)  277,  4  N.  B.  E.  38 435 

McKnight,  Ex  parte,  48  Ohio  St.  594,  28  N.  E.  1034,  14  L.  E.  A.  130 336 

McLarn  v.  Wallace,  10  Pet.  625,  9  L.  ed.  559 226 

McMillan  v.  School  Committee,  107  N.  C.  609,  12  S.  E.  330,  10  L.  E.  A. 

823 160 

McMillan  v.  Spider  Lake  Saw-Mill  etc.  Co.,  115  Wis.  332,  95  Am.  St.  Eep. 

947,  91  N.  W.  979,  60  L.  E.  A.  589 215 

McMullen  v.  Hodge,  5  Tex.  34 273,  281,  288 

McNair  v.  Toler,  21  Minn.  175 227 

McNeil  v.  Polk,  57  Cal.  323 226 

McNulty  v.  California,  149  U.  S.  648,  13  Sup.  Ct.  Eep.  960,  37  L.  ed.  884. .  211 

Meade  v.  United  States,  9  Wall.  691,  19  L.  ed.  687 132 

Meader  v.  Norton,  11  Wall.  442,  20  L.  ed.  184 291 

Meakings  v.  Cromwell,  5  N.  Y.  136 229 

Megrath  v.  Eobertson,  1  Desaus.  (S.  C.)  445,  249 229,  263 

Meier  v.  Lee,  106  Iowa,  303,  76  N.  W.  712 226,  229,  249 

Menendez  v.  Holt,  128  U.  S.  514,  9  Sup.  Ct.  Eep.  143,  32  L.  ed.  526 280 

Mereide,  The,  9  Cranch,  388,  3  L.  ed.  769 434 

Merriam  v.  United  States,  29  Ct.  of  Cl.  250 584 

Me-shing-go-me-sea  v.  State,  36  Ind.  316 ' 389 

Metzger,  In  re,  1  Barb.  248 120 

Metzger,  In  re,  Fed.  Gas.  No.  9511 87,  185,  319 

Metzger,  In  re,  1  Park.  Cr.  Eep.  108 308 

Metzger,  Matter  of,  5  How.  176,  12  L.  ed.  104 298 

Metzger,  Matter  of,  5  N.  Y.  Leg.  Obs.  83 322 

Meunier,  In  re,  [1894]  2  Q.  B.  415 335 

Mexican  Cent.  Ey.  Co.  v.  Chantry,  136  Fed.  316,  69  C.  C.  A.  454 442 

Mexican  etc.  Ey.  Co.  v.  Jackson,  89  Tex.  107,  59  Am.  St.  Eep.  28,  33  S.  W. 

857,  31  L.  E.  A.  276 219 

Mexico  v.  De  Arangoiz,  5  Duer  (N.  Y.) ,  643 399 

Mick  v.  Mick,  10  Wend.  (N.  Y.)  379 227 

Middleton  v.  Low,  30  Cal.  596 291 

Middleton  v.  McGrew,  23  How.  45,  16  L.  ed.  403 226 


TABLE  OP  CASES  CITED.  xliii 

SECTION 

Miller  v.  Bronson,  50  Tex.  591 281 

Miller  v.  Dale,  44  Cal.  578 - 292 

Miller  v.  Dale,  92  U.  S.  473,  23  L.  eil.  735. 292 

Miller  v.  Lancaster  Bank,  106  U.  S.  544,  1  Sup.  Ct.  Eep.  537,  27  L.  ed. 

290  107- 

Miller  v.  United  States,  11  Wall.  268,  20  L.  ed.  135 434 

Miller  v.  Van  Loben  Sels,  66  Cal.  341,  5  Pac.  512 411,  412 

Mills  v.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535 446 

Mills  v.  United  States,  46  Fed.  738,  12  L.  E.  A.  673 584 

Mineau,  In  re,  45  Fed.  188 345,  348,  360 

Mining  Co.  v.  Dickert  etc.  Co.,  6  Utah,  196,  21  Pac.  1007,  5  L.  E.  A.  267 .  .  383 
Minnesota  v.  Brundage,  180  U.  S.  499,  21  Sup.  Ct.  Eep.  455,  45  L.  ed. 

639 353,  354 

Minnesota  Canal  &  Power  Co.  v.  Pratt  (Minn.),  112  N.  W.  395 167,  174 

Minturn  v.  Brower,  24  Cal.  644 276,  281,  285,  288 

Misch  v.  Eussell,  136  111.  22,  26  N.  E.  528,  12  L.  E.  A.  125 246 

Mississippi  Cent.  E.  Co.  v.  State,  46  Miss.  157 33 

Missouri  v.  Kentucky,  78  U.  S.  (11  Wall.)  395,  20  L.  ed.  116 44 

Missouri  Pac.  Ey.  v.  Fitzgerald,  160  U.  S.  576,  16  Sup.  Ct.  Eep.  393,  40 

L.  ed.  540 104 

Missouri  Elver,  Ft.  S.  &  G.  E.  Co.  v.  Morris,  1.3  Kan.  316 391,  392 

Mitchel  v.  United  States,  9  Pet.  711,  9  L.  ed.  283 132,  269,  288,  379 

Mitchell's  Admr.  v.  Commissioners  of  Champaign  County,  9  Ohio  St.  & 

C.  P.  Dec.  821 554 

Mobile  Cong.  Church  v.  Morris,  8  Ala.  182 228 

Mobile  &  O.  E.  Co.  v.  Tennessee,  153  U.  S.  486,  14  Sup.  Ct.  Eep.  968,  38 

L.  ed.  793 52 

Mobile  Transp.  Co.  v.  City  of  Mobile,  128  Ala.  335,  86  Am.  St.  Eep.  143, 

30  South.  645,  64  L.  E.  A.  333 105 

Mobile  Transportation  Co.  v.  Mobile,  187  U.  S.  479,  23  Sup.  Ct.  Eep.  170, 

47  L.  ed.  266 105 

Moffat  v.  United  States,  112  U.  S.  24,  5  Sup.  Ct.  Eep.  10,  28  L.  ed.  623.  .  440 
Moletor  v.  Sonnen,  76  Wis.  312,  20  Am.  St.  Eep.  74,  44  N.  W.  1100,  7 

L.  E.  A.  818 336 

Moncan,  In  re,  14  Fed.  44,  8  Saw.  350 191 

Monroe  v.  Douglas,  4  Sand.  Ch.  126 435 

Montgomery  v.  Beavans,  1  Saw.  653,  17  Fed.  Cas.  No.  9735 281 

Montgomery  v.  Dorion,  7  N.  H.  475 221,  226 

Montgomery  v.  Ives,  12  Smedes  &  M.  (Miss.)  173 378 

Moody  v.  Board  of  Supervisors  of  Niagara  County,  46  Barb.  (N.  Y.)  659.  .  551 

Mooers  v.  White,  6  Johns.  Ch.  (N.  Y.)  360 221,  223,  226 

Moore,  In  re,  75  Fed.  824 , 312 

Moore  v.  County  Commissioners,  2  Wyo.  22 387 

Moore  v.  Tisdale,  5  B.  Mon.  (Ky.)  352 227 

Moore  v.  Wilson,  10  Yerg.  (Tenn.)  406 264 


xliv  TABLE  OF  CASES  CITED. 

SECTION 

Mora  v.  Foster,  3  Saw.  469,  17  Fed.  Gas.  No.  9784 291 

More  v.  Steinbach,  127  U.  S.  70,  8  Sup.  Ct.  Eep.  1067,  32  L.  ed.  51. ..  .288,  291 

Morgan  v.  Keenan,  1  S.  C.  327 34 

Morris  v.  Lenton,  61  Neb.  537,  85  N.  W.  565 458 

Morris  v.  Missouri  Pac.  Ey.  Co.,  78  Tex.  17,  22  Am.  St.  Rep.  17,  14  S. 

W.  228,  9  L.  E.  A.  349 219 

Morris  v.  United  States,  30  Ct.  of  Cl.  162 584 

Morrison  v.  Watson,  154  U.  S.  115,  14  Sup.  Ct.  Eep.  997,  38  L.  ed.  929.  .  211 

Mott  v.  Smith,  16  Cal.  550 292,  458 

Mound  City  Land  etc.  Assn.  v.  Philip,  64  Cal.  497,  2  Pac.  270 292 

Muir  v.  Thompson,  28  S.  C.  499,  6  S.  E.  309 223 

Mulhall  v.  Fallon,  176  Mass.  266,  79  Am.  St.  Eep.  309,  57  N.  E.  386,  54 

L.  E.  A.  934 215 

Muller,  In  re,  Fed.  Cas.  No.  9913 318,  322 

Munford  v.  Wardwell,  6  Wall.  423,  18  L.  ed.  756 274 

Munns  v.  De  Nemours,  3  Wash.  C.  C.  31,  Fed.  Cas.  No.  9926 350 

Munro  v.  Merchant,  28  N.  Y.  9 221 

Munroe  v.  Merchant,  26  Barb.  (N.  Y.)  384 256 

Murdock  v.  Gurley,  5  Eob.  (La.)  457 288 

Murphy  v.  Eamsey,  114  U.  S.  15,  5  Sup.  Ct.  Eep.  747,  29  L.  ed.  47 469 

Murray  v.  Fishback,  5  B.  Mon.  (Ky.)  403 221 

Murray  v.  Heron,  7  Grant.  Ch.  (U.  C.)  177 221 

Muse  v.  Arlington  Hotel,  68  Fed.  637 273,  288 

Muse  v.  Arlington  Hotel  Co.,  168  U.  S.  430,  42  L.  ed.  531,  18  Sup.  Ct. 

Eep.  Ill 114 

Musquix  v.  Blake,  24  Tex.  461 273 

Mussey  v.  Pierre,  24  Me.  559 221,  227 

Naylor  v.  Hoffman,  22  How.  Pr.  510 411 

Neagle,  In  re,  135  U.  S.  1,  10  Sup.  Ct.  Eep.  658,  34  L.  ed.  55 353,  354 

Nebraska  v.  Iowa,  143  U.  S.  359,  36  L.  ed.  186 44 

Neck,  The,  138  Fed.  144 125,  455 

Neely  v.  Henkel,  180  U.  S.  109,  21  Sup.  Ct.  Eep.  302,  45  L.  ed.  448 

294,  307,  323,  353 

Nelson,  4  Op.  Atty.  Gen.  201 344 

Newberry  v.  New  York,  1  Sweeny  (N.  Y.),  369 549,  551 

Newhall  v.  Sanger,  92  U.  S.  761,  23  L.  ed.  769 273,  291 

New  Hampshire  v.  Louisiana,  108  U.  S.  90,  27  L.  ed.  661,  2  Sup.  Ct.  Eep. 

183  559,  57i 

New  Haven  etc.  T.  B.  Co.  v.  Bunnell,  4  Conn.  59. 213 

New  Jersey  v.  New  York,  30  U.  S.  284,  8  L.  ed.  127 44 

Newman,  In  re,  79  Fed.  622  348 

Newman  v.  Lawless,  6  Mo.  279 281 

New  Orleans  v.  Abagnatto,  62  Fed.  240,  10  C.  C.  A.  361,  26  L.  E.  A.  329, 

23  U.  S.  App.  533 530,  545 


TABLE  OF  CASES  CITED.  xlv 

SECTION 

New  Orleans  v.  De  Armas,  9  Pet.  224,  9  L.  ed.  109 109 

New  Orleans  Waterworks  Co.  v.  Louisiana  Sugar  Eef.  Co.,  125  U.  S.  18, 

8  Sup.  Ct.  Rep.  741,  31  L.  ed.  607 52 

New  York  v.  Dibble,  21  How.  (U.  S.)  366,  16  L.  ed.  149 216 

New  York  v.  Eno,  155  U.  S.  89,  15  Sup.  Ct.  Eep.  30,  39  L.  ed.  80 353 

New  York  Indians  v.  United  States,  30  Ct.  of  Cl.  413 94 

New  York  Indians  v.  United  States,  40  Ct.  of  Cl.  448  393 

New  York  Indians  v.  United  States,  170  U.  S.  22,  18  Sup.  Ct.  Eep.  531,  42 

L.  ed.  927 65,  66 

Nishimura  Ekin  v.  United  States,  142  U.  S.  659,  12  Sup.  Ct.  Bep.  338, 

35  L.  ed.  1149 175 

Nixon  v.  Houillon,  20  La.  Ann.  515 281,  288 

Nixon  v.  United  States,  18  Ct.  of  Cl.  448 584 

Nolan  v.  Command,  11  N.  Y.  Civ.  Proc.  295 227 

Norberg  v.  Hillgren,  5  N.  Y.  Leg.  Obs.  177,  7  Am.  Law  Rev.  418 212,  447 

Norris  v.  City  of  Boston,  7  How.  472,  12  L.  ed.  724 239 

Norris  v.  Hoyt,  18  Cal.  217 222,  227 

Northern  P.  Ey.  Co.  v.  Amato,  144  U.  S.  465,  12  Sup.  Ct.  Eep.  740,  36  L. 

ed.  506 113 

^srtJjAro  Pacific  Ey.  Co.  v.  Austin,  135  U.  S.  318,  10  Sup.  Ct.  Eep.  759, 

34  L.  ed.  219 211 

North  German  Lloyd  S.  S.  Co.  v.  Hedden,  43  Fed.  17 167,  169 

Northwestern  Fertilizing  Co.  v.  Hyde  Park,  70  111.  634 213 

Northwestern  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  24  L.  ed.  1036. .  213 

Norton,  Ex  parte,  44  Ala.  180 32 

Norton  v.  General  Land  Office  Commissioners,  2  Tex.  357  281 

Nosely  v.  Tuthill,  45  Ala.  621,  6  Am.  Eep.  710  32 

Novello  v.  Toogood,  1  Barn.  &  C.  562 399 

O  'Connell  v.  Dougherty,  32  Cal.  462  292 

O  'Hanlin  v.  Van  Kleeck,  20  N.  J.  L.  44 221 

Ohio  Life  Ins.  &  T.  Co.  v.  Debolt,  16  How.  416,  14  L.  ed.  997 52 

Oldfield  v.  Marriott,  10  How.  146,  13  L.  ed.  364  169 

Olmstead  's  Appeal,  86  Pa.  284  223 

Olsen  v.  Smith,  195  U.  S.  332,  25  Sup.  Ct.  Eep.  52,  49  L.  ed.  224 131,  204 

Ondis  v.  Banta,  7  Kulp  (Pa.),  390 227 

Opel  v.  Shoup,  100  Iowa,  407,  69  N.  W.  560,  37  L.  E.  A.  583 240,  248 

Oregon  Mtg.  Co.  v.  Carstens,  16  Wash.  165,  47  Pac.  421,  35  L.  E.  A. 

841 221 

O  'Eeilly  De  Camera  v.  Brooke,  135  Fed.  384 117 

Ornelas  v.  Euiz,  161  U.  S.  502,  16  Sup.  Ct.  Eep.  689,  40  L.  ed. 

787 331,353,355 

Orpen,  In  re,  86  Fed.  760 345,  350 

Orr  v.  Hodgson,  4  Wheat.  453,  4  L.  ed.  613 222,  236 

Orser  v.  Hoag,  3  Hill  (N.  Y.),  79 258 


xlvi  TABLE  OF  CASES  CITED. 

SECTION 

Ortiz  v.  De  Benavides,  61  Tex.  60 227,  273,  278 

Ortz,  Ex  parte,  100  Fed.  955   91 

Oscanyan  v.  Winchester  E.  Arms  Co.,  103  U.  S.  261,  26  L.  ed.  539 445,  446 

Osterman  v.  Baldwin,  6  Wall.  116,  18  L.  ed.  730 221 

Oteiza  y  Cortes  v.  Jacobus,  136  U.  S.  330,  10  Sup.  Ct.  Eep.  1031,  34  L. 

ed.  464 317,331 

Overing  v.  Russell,  32  Barb.  363 221 

Owings  v.  Norwood,  2  Har.  &  J.  (Md.)  96 253 

Owings  v.  Nonvood's  Lessee,  5  Cranch,  344,  3  L.  ed.  120 106,  253 

Oyama  Kenichi,  In  re  (No.  12,579,  April  8,  1898) 320 

Pacific  E.  E.  Co.  v.  Missouri  etc.  Ey.  Co.,  2  McCrary,  229,  12  Fed.  642 440 

Page  v.  Foust,  89  N.  C.  447 246 

Palmer,  In  re,  Fed.  Cas.  No.  10,679 319 

Palmer  v.  Concord,  48  N.  H.  211,  97  Am.  Dec.  605 546,  553,  554 

Paquete'Habana,  The,  175  U.  S.  677,  20  Sup.  Ct.  Eep.  290,  44  L.  ed.  320.  .   434 

Parkhill,  The,  18  Fed.  Cas.  (No.  10,755a)   1192 435 

Parrott,  In  re,  1  Fed.  501,  6  Saw.  349 26,  198,  200 

Paschal  v.  Dangerfield,  37  Tex.  273 281 

Paschal  v.  Perez,  7  Tex.  348 281 

Passenger  Cases,  The,  7  How.  283,  12  L.  ed.  702 175 

Patton  v.  Skidmore,  19  Tex.  533 281 

Paul  v.  Chilsoquie,  70  Fed.  402 387 

Paul  v.  Perez,  7  Tex.  338 273 

Paul  v.  Ward,  15  N.  C.  247 227 

Peaslee  v.  Peaslee,  147  Mass.  180,  17  N.  E.  510 435 

Peck  v.  Miami  County  Commissioners,  4  Dill.  370,  Fed.  Cas.  No.  10,891.  . .   392 

Peck  v.  Moody,  23  Tex.  93 281 

Peck  v.  Young,  26  Wend.  (N.  Y.)  613 227 

Pelton  v.  Platner,  13  Ohio,  217,  42  Am.  Dec.  199 435 

Penn  v.  Tollison,  26  Ark.  545 32 

Pennoyer  v.  McConnaughy,  140  U.  S.  12,  11  Sup.  Ct.  Eep.  702,  35  L.  ed. 

366 559 

Pennsylvania  Co.  v.  Chicago,  81  Fed.  317 546 

Pennsylvania  Hall,  Matter  of,  5  Pa.  204   546,  552 

Pennywitt  v.  Foote,  27  Ohio  St.  600,  22  Am.  Eep.  340 32 

People  v.  Bingham,  102  N.  Y.  Supp.  878,  117  App.  Div.  411 342 

People  v.  Board  of  Supervisors,  56  Hun,  17,  8  N.  Y.  Supp.  752 364,  365 

People  v.  Board  of  Supervisors,  134  N.  Y.  1,  31  N.  E.  322 365 

People  v.  Coleman,  4  Cal.  46,  60  Am.  Dec.  586 240 

People  v.  Cross,  135  N.  Y.  540,  31  Am.  St.  Eep.  853,  32  N.  E.  247 337,  339 

People  v.  Curtis,  50  N.  Y.  321,  10  Am.  Eep.  483 36 

People  v.  Dibble,  16  N.  Y.  221   385 

People  v.  Folsom,  5  Cal.  373 222,  226,  268 

People  v.  Gallagher,  93  N.  Y.  438,  45  Am.  Eep.  232 151,  160 


TABLE  OF  CASES  CITED.  xlvii 

SECTION 

People  v.  Gerke,  5  Gal.  381 240 

People  v.  Gray,  66  Cal.  271,  5  Pac.  240 317 

People  v.  Hannan,  9  Misc.  Eep.  600,  30  N.  Y.  Supp.  370 336 

People  v.  Mayor  of  Brooklyn,  55  Am.  Dec.  288,  note 240 

People  v.  MeCreery,  34  Cal.  488 240 

People  v.  McGowan,  77  111.  644,  20  Am.  Rep.  254 467 

People  v.  McLeod,  25  Wend.  483,  37  Am.  Dec.  328 506 

People  v.  Miller,  169  N.  Y.  339,  88  Am.  St.  Eep.  546,  62  N.  E.  418 410 

People  v.  Naglee,  1  Cal.  249,  52  Am.  Dec.  312  239,  240 

People  v.  Potrerio  &  B.  V.  R.  R.  Co.,  67  Cal.  166,  7  Pac.  446 174 

People  v.  Pratt,  78  Cal.  345,  20  Pac.  731 304 

People  v.  Rowe,  4  Park.  Cr.  Rep.  253 312 

People  v.  San  Francisco,  75  Cal.  388,  17  Pac.  522 274 

People  v.  Snyder,  51  Barb.  (N.  Y.)  589 256 

People  v.  Stout,  81  Hun,  336,  30  N.  Y.  Supp.  898 336,  339 

People  v.  Sweetser,  1  Dak.  316,  46  N.  W.  455 388 

People  v.  Warren,  13  Misc.  Rep.  615,  34  N.  Y.  Supp.  942 201 

People  v.  Wasservogel,  77  Cal.  173,  19  Pac.  270 410 

Peralta  v.  United  States,  3  Wall.  434,  18  L.  ed.  221 291 

Perdicaris  v.  Charleston  Gaslight  Co.,  1  Chase,  435,  19  Fed.  Cas.  No. 

10,974  33 

Perrin  v.  United  States,  171  U.  S.  292,  18  Sup.  Ct.  Rep.  861,  43  L.  ed. 

169 293 

Perry  etc.  Co.,  Ex  parte,  43  S.  C.  176,  20  S.  E.  980 218 

Pettit  v.  Walshe,  194  U.  S.  205,  24  Sup.  Ct.  Rep.  657,  48  L.  ed. 

938  348,351,354 

Pettus  v.  Dawson,  82  Tex.  18,  17  S.  W.  714 226 

Phelps  v.  McDonald,  99  U.  S.  298,  25  L.  ed.  473 572 

Phillips,  6  Op.  Atty.  Gen.  642 352 

Phillips  v.  Moore,  100  U.  S.  208,  25  L.  ed.  603 222 

Phillips  v.  Morina  City  Land  &  W.  Assn.,  124  U.  S.  605,  610,  8  Sup.  Ct. 

Rep.  657,  31  L.  ed.  588 100 

Pierce  v.  The  Alberto,  Hoff.  441,  19  Fed.  Cas.  (No.  11,142)  633 435 

Pinkerton  v.  Ledoux,  129  U.  S.  346,  9  Sup.  Ct.  Rep.  399,  32  L.  ed.  706 ...  293 

Pino  v.  Hatch,  1  N.  Mex.  125 288 

Pintsch  C.  Co.  v.  Bergin,  84  Fed.  141 467 

Pioche  v.  Paul,  22  Cal.  Ill 292 

Piper  v.  Richardson,  9  Met.  (Mass.)  155 221 

Pitcher's  Case,  1  Ct.  of  Cl.  7 584 

Pittsburgh  etc.  Ry.  Co.  v.  Naylor,  73  Ohio  St.  115,  112  Am.  St.  Rep.  701, 

76  N.  E.  505,  3  L.  R.  A.,  N.  S.,  473 215 

Polk  v.  Ralston,  2  Humph.  (Tenn.)  537 229 

Pollard  v.  Hagan,  3  How.  212,  11  L.  ed.  565 274 

Pollard's  Heirs  v.  Kibbe,  14  Pet.  353,  10  L.  ed.  490 236,  273 

Pong  Ah  Che,  In  re,  18  Fed.  527  189 


xlviii  TABLE  OF  CASES  CITED. 

SECTION 

Poole  v.  Fleeger,  11  Pet.  185,  9  L.  ed.  680 127 

Potter  v.  Titcomb,  22  Me.  300 227 

Pound  v.  Turck,  95  U.  S.  459,  24  L.  ed.  525 172 

Powers  v.  Comly,  101  U.  S.  789,  25  L.  ed.  805 169 

Prather  v.  Lexington,  13  B.  Mon.  (Ky.)  559,  56  Am.  Dec.  585 545 

Prevost  v.  Greenaux,  19  How.  1,  15  L.  ed.  572 92,  210 

Prevost  's  Succession,  12  La,  Ann.  577 210 

Price  v.  United  States,  U.  S.  Cir.  Ct.  App.,  9th  Circuit  (Nov.  5,  1907)    ...  410 

Priest  v.  Cummings,  16  Wend.  (N.  Y.)  617 227 

Priest  v.  Cummings,  20  Wend.  (N.  Y.)  338 227 

Prince  William  School  Board  v.  Stuart,  80  Va.  81 34 

Puget  Sound  Agricultural  Co.  v.  Pierce  County,  1  Wash.  Ter.  159 273 

Pugh  v.  Gillam,  1  Cal.  485 239 

Purczell  v.  Smidt,  21  Iowa,  540 228 

Purvis  v.  Harmanson,  4  La.  Ann.  421   281 

Quan  Gin,  In  re,  61  Fed.  395 191 

Quigley  v.  Birdseye,  11  Mont.  439,  28  Pac.  741 221,  222 

Quinn  v.  Ladd,  37  Or.  261,  59  Pac.  457 227 

Quock  Ting  v.  United  States,  140  U.  S.  417,  11  Sup.  Ct.  Eep.  733,  35  L. 

ed.  501 188 

Eace  Horse,  In  re,  70  Fed.  607 93,  389,  391,  392 

Eacouillat  v.  Sansevain,  32  Cal.  376 222,  226 

Eamires  v.  Kent,  2  Cal.  558 222,  226 

Eamsay  v.  United  States,  21  Ct.  of  Cl.  443 584 

Eandall  v.  Jaques,  20 'Fed.  Cas.  No.  11,553  222 

Eandolph,  1  Op.  Atty.  Gen.  25 573 

Eand  v.  State,  65  N.  C.  194,  6  Am.  Eep.  741 33 

Eateau  v.  Bernard,  3  Blatchf .  244,  20  Fed.  Cas.  No.  11,579 227 

Eavesies  v.  United  States,  21  Ct.  of  Cl.  243 587 

Eay  v.  McCulloeh,  1  N .  C.  (N.  C.  Conf.)  492 261 

Eay  v.  Thompson,  43  Ala.  434,  94  Am.  Dec.  696 32 

Eaymond  v.  Eaymond,  83  Fed.  722,  55  U.  S.  App.  92,  28  C.  C.  A.  38 385 

Bead  v.  Eead,  5  Call    (Va.),  160 226 

Eeal  de  Dolores  Del  Oro  v.  United  States,  175  U.  S.  71,  20  Sup.  Ct.  Eep. 

17,  44  L.  ed.  76 293 

Eeal  Estate  Sav.  Bank's  Case,  16  Ct.  of  Cl.  335 584 

Eeal  Estate  Sav.  Bank's  Case,  104  U.  S.  728,  26  L.  ed.  908 584 

Eeclamation  District  No.  551    v.  Eunyon,  117  Cal.  164,  49  Pae.  131 413 

Eeed  v.  Johnson,  27  Wash.  55,  67  Pac.  386,  57  L.  E.  A.  404 446 

Eeed  v.   Stanly,   89  Fed.  433 440 

Eeese  v.  Waters,  4  Watts    &  S.    (Pa.)    145 227 

Eegents  v.  Williams,  9  Gill    &  J.  365,  31  Am.  Dec.  72 213 

Eegina  v.  Anderson,  11  Cox   C.  C.  198,  L.  E.  1  C.  C.  161 129 


TABLE  OF  CASES  CITED.  xlix 

SECTION 

Eegina  v.  Cunningham,  Bell  C.  C.  72,  8  Cox  C.  C.  104 129 

Eegina  v.  Keyn,  13  Cox  C.  C.  403 129 

Eeichart  v.  Felps,  6  Wall.  160,  18  L.  ed.  849 94 

Reiner,  In  re,  122  Fed.  110 317 

Eeinitz,  In  re,  39  Fed.  206,  4  L.  E.  A.  236 336 

Eeloj  Cattle  Co.  v.  United  States,  184  U.  S.  624,  22  Sup.  Ct.  Eep.  499, 

46  L.  ed.  721 293 

Renfrew  v.  United  States,  3  Okla.  170,  41  Pac.  91 388 

Eenlund  v.  Commodore  Min.  Co.,  89  Minn.  47,  99  Am.  St.  Eep.  534,  93  N. 

W.  1057 215 

Eenner  v.  Miiller,  57  How.  Pr.  (N.  Y.)  229 . 226 

Eespublica  v.  De  Longchamps,  1  Dall.  (Pa.)  Ill,  1  L.  ed.  59 298,  434 

Respublica  v.  Gordon,  1  Dall.  (Pa.)  233,  1  L.  ed.  115 262 

Rex  v.  Governor  of  Holloway  Prison,  87  L.  T.  332,  71  L.  J.  K.  B.  935 356 

Reynolds  v.  West,  1  Cal.  326 276,  288 

Rheim  v.  Robbins,  20  Iowa,  45 226 

Rhode  Island  v.  Massachusetts,  12  Pet.  657,  9  L.  ed.  1233,  1260 44,  127 

Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  Rep.  406,  45  L.  ed.  577 

344,  345,  354 

Eichardson  v.  Stowe,  102  Mo.  44,  14  S.  W.  812 440 

Richmond  v.  Milne,  17  La.  312,  36  Am.  Dee.  613 227,  228,  229 

Rico  v.  Spence,  21  Cal.  504 281,  285 

Rio  Ariba  Land  &  Cable  Co.  v.  United  States,  167  U.  S.  298,  17  Sup.  Ct. 

Eep.  875,  42  L.  ed.  175 283,  289 

Eitchie  v.  McMullen,  159  U.  S.  235,  16  Sup.  Ct.  Eep.  171,  40  L.  ed.  133 440 

Eixner,  Succession  of,  48  La.  Ann.  563,  19  South.  601,  32  L.  R.  A.  189 . .  210 
Robasse,  Succession  of,  47  La.  Ann.  1452,  49  Am.  St.  Rep.  433,  17  South. 

867 203,  221 

Robasse,  Succession  of,  49  La.  Ann.  1413,  22  South.  767 210 

Robb  v.  Connolly,  111  U.  S.  624,  4  Sup.  Ct.  Rep.  544,  28  L.  ed.  542 . .  353,  354 

Roberts  v.  City  of  Boston,  5  Gush.  198 151,  160 

Roberts  v.  Dunsmuir,  75  Cal.  203,  16  Pac.  782 218 

Roberts  v.  M.  K.  etc.  Railway  Co.,  43  Kan.  106,  22  Pac.  1007 379,  383 

Robertson  v.  Miller,  1  Brock  (U.  S.),  466,  20  Fed.  Gas.  No.  11,926 221 

Eobinson,  In  re,  29  Neb.  138,  26  Am.  St.  Rep.  379,  45  N.  W.  268,  8  L.  R. 

A.  309 336 

Robinson  v.  Greenville,  42  Ohio  St.  629,  51  Am.  Rep.  857 545 

Robson  v.  The  Huntress,  2  Wall.  Jr.  59,  Fed.  Gas.  No.  11,971 451 

Roche  v.  Washington,  19  Ind.  56,  81  Am.  Dec.  378 387 

Rogers  v.  The  Amado,  Newb.  400,  20  Fed.  Gas.  No.  12,005 449 

Romano  v.  Capital  City  Brick  Co.,  125  Iowa,  591,  106  Am.  St.  Rep.  323, 

101  N.  W.  437 215 

Ropes  v.  Clinch,  8  Blatchf.  304,  Fed.  Gas.  No.  12,041 169,  176 

Rose  v.  Himely,  4  Cranch,  241,  2  L.  ed.  608 434 

Boss,  Ex  parte,  2  Bond.  252,  Fed.  Gas.  No.  12,069 352 


1  TABLE  OF  CASES  CITED. 

SECTION 

Ross,  In  re,  140  U.  S.  463,  11  Sup.  Ct.  Rep.  897,  35  L.  ed.  581 99,  140 

Ross  v.  Mclntyre,  140  U.  S.  453,  11  Sup.  Ct.  Rep.  987,  35  L.  ed.  581 99,  140 

Roth,  In  re,  15  Fed.  506 347 

Roth  v.  Roth,  104  111.  46,  44  Am.  Rep.  84 435 

Roussin  v.  Parks,  8  Mo.  539 277 

Rowe,  In  re,  77  Fed.  165,  23  C.  C.  A.  103,  40  U.  S.  App.  516 336 

Royall,  Ex  parte,  117  U.  S.   241,  6  Sup.  Ct.  Rep.  734,  29  L.  ed.  868 . .   353,  354 

Rubeck  v.   Gardner,   7   Watts    (Pa.),   455 228 

Rush  v.  Casey,  39  Cal.  339 291 

Russell  v.  Maxwell  Land  Grant  Co.,  158  U.  S.  253,  15  Sup.  Ct.  Rep.  827, 

39  L.  ed.  971 293 

Rutledge  v.  Krauss,  73  N.  J.  L.  397,  63  Atl.  988 348 

Sabriego  v.  White,  30  Tex.  576 273,  278 

Sagory  v.  Wisseman,  2  Ben.  240,  Fed.  Cas.  No.  12,217 411,  412 

Sala,  Succession  of,  50  La.  Ann.  1009,  24  South.  674 210 

Salisbury  v.  Washington,  22  Misc.  Rep.  41,  48  N.  Y.  Supp.  122 549,  551 

Salmon  v.  Symonds,  30  Cal.  301 292 

Salmon!,  The,  29  Fed.  534 212,  448 

Sanborn  v.  Vance,  69  Mich.  226,  37  N.  W.  273 276 

Sanchez  v.  Gonzales,  11  Mart.  (O.  S.)  207 288 

Sanders  v.  State,  60  Ga.  126 554 

Sands  v.  Lynham,  27  Gratt.  (Va.)  291,  21  Am.  Rep.  348 221,  228 

San  Francisco  v.  Le  Roy,  138  U.  S.  656,  11  Sup.  Ct.  Rep.  364,  34  L.  ed. 

1096  274 

San  Francisco  v.  United  States,  4  Saw.  553,  21  Fed.  Cas.  No.  12,316 292 

San  Pedro  etc.  Co.  v.  United  States,  146  U.  S.  120,  13  Sup.  Ct.  Rep.  94. 

36  L.  ed.  912 292 

Santa  Clara  Min.  Assn.  v.  Quicksilver  Min.  Co.,  8  Saw.  330,  17  Fed.  657 .  .  292 

Sartori  v.  Hamiltoii,  13  N.  J.  L.  107 411 

Saxlehner  v.  Eisner  etc.  Co.,  88  Fed.  61,  91  Fed.  536,  539,  63  U.  S.  App. 

139,  145,  33  C.  C.  A.  291 280 

Sayward  v.  Denny,  158  U.  S.  180,  15  Sup.  Ct.  Rep.  777,  39  L.  ed.  941 113 

Scanlan  v.  Wright,  13  Pick.  523,  25  Am.  Dec.  344 221,  226,  227 

Scharpf  v.  Schmidt,  172  111.  255,  50  N.  E.  182 227,  247 

Scheurer  v.  Columbia  etc.  Co.,  11  Saw.  575,  27  Fed.  174 174 

Schiellein  v.  Kings  County,  43  Barb.  (N.  Y.)  490 549,  551 

Schierling  v.  United  States,  23  Ct.  of  Cl.  361 .  587 

Schillinger  v.  United  States,  155  U.  S.  163,  15  Sup.  Ct.  Rep.  85,  39  L.  ed. 

108 584 

Schmitt  v.  Giovanari,  43  Cal.  617 292 

Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  3  L.  ed.  287 333,  399 

Schooner  Sophie,  The,  6  Rob.  Adm.  138 115 

Schultze  v.  Schultze,  144  111.  290,  36  Am.  St.  Rep.  432,  33  N.  E.  201,  19 

L.    R.    A.    20 227,  245,  246,  247 


TABLE  OF  CASES  CITED.  li 

SECTION 

Schuyler  Nat.  Bank  v.  Bollong,  150  U.  S.  88,  14  Sup.  Ct.  Rep.  25,  37  L. 

ed.  1009 211 

Scott  v.  Hobe,  108  Wis.  239,  84  N.  W.  181 402 

Scott  v.  McNeal,  154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108,  38  L.  ed.  896 435 

Scottish  Union  etc.  Ins.  Co.  v.  Herriott,  109  Iowa,  606,  80  N.  W.  665 296 

Scruggs  v.  Huntsville,  45  Ala.  222 32 

Sebben  v.  Trezevant,  3  Desaus.  (S.  C.)  213  226 

Sequestration  Cases,  30  Tex.  689,  98  Am.  Dec.  494 33 

Seton  v.  Hoyt,  34  Or.  272,  75  Am.  St.  Rep.  643,  55  Pac.  968,  43  L.  R.  A. 

635 580 

Shanks  v.  Dupont,  3  Pet.  242,  7  L.  ed.  666 227,  236 

Sharon  v.  Hill,  24  Fed.  731 410 

Shaw  v.  Kellogg,  170  U.  S.  312,  18  Sup.  Ct.  Rep.  632,  42  L.  ed.  1050 293 

Sheaffe  v.  O'Neil,  1  Mass.  256 221,  226 

Sheazle,  Matter  of,  Fed.  Gas.  No.  12,734,  1  Wood.  &  M.  66 298,  308 

Shepard  v.  Northwestern  Life  Ins.  Co.,  40  Fed.  341 87 

Sherman  v.  McCarthy,  57  Cal.  507 292 

Ship  Adolph,  The,  1  Curt.  89,  Fed.  Cas.  No.  86 451 

Shively  v.  Bowlby,  152  U.  S.  50,  14  Sup.  Ct.  Rep.  567,  38  L.  ed.  350 378 

Shivers  v.  Wilson,  5  Har.  &  J.  (Md.)  130,  9  Am.  Dec.  497 227 

Shong  Toon,  In  re,  21  Fed.  386 191 

Shortridge  v.  Macon,  1  Chase,  136,  22  Fed.  Cas.  No.  12,812  32 

Siemssen  v.  Bofer,  6  Cal.  250 226,  227,  240 

Silver  Lake  Bank  v.  North,  4  Johns.  Ch.  (N.  Y.)  370  227 

Simmerman  v.  Nebraska,  116  U.  S.  54,  6  Sup.  Ct.  Rep.  333,  29  L.  ed.  535.  104 

Sing  Lee,  In  re,  54  Fed.  334 191 

Sistare  v.  Sistare,  2  Root  (Conn.),  468  227 

Slater  v.  Nason,  15  Pick.  (Mass.)  345  228 

Slaughter-house  Cases,  83  U.  S.  (16  Wall.)  36,  21  L.  ed.  394 213 

Slidell  v.  Grandjean,  111  U.  S.  412,  4  Sup.  Ct.  Rep.  475,  28  L.  ed.  321 273 

Smith  v.  Gibson,  83  Ala.  284,  3  South.  321 218 

Smith  v.  Maryland,  6  Cranch,  286,  3  L.  ed.  225 108 

Smith  v.  State,  5  Tex.  397  288 

Smith  v.  Stevens,  10  Wall.  321,  19  L.  ed.  933  94 

Smith  v.  Turner,  7  How.  472,  12  L.  ed.  724 239 

Smith  v.  United  States,  10  Pet.  326,  9  L.  ed.  442 132 

Smith  v.  Zaner,  4  Ala.  99 222,  226,  228 

Smyth  v.  New  Orleans  Canal  Co.,  93  Fed.  899,  35  C.  C.  A.  646 288 

Smyth  v.  Smyth,  8  Ch.  Div.  561 246 

Snell  v.  Railway  Co.,  78  Iowa,  94,  42  N.  W.  590 382 

Society  for  Propagation  of  the  Gospel  v.  Town  of  New  Haven,  8  Wheat.- 

464,  5  L.  ed.  662 132,*  221,  236 

Society  etc.  v.  Wheeler,  2  Gall  (U.  S.),  105,  22  Fed.  Cas.  No.  13,156...  221 

Solomon  v.  Kingston,  24  Hun  (N.  Y.),  562 549,  551,  554 

Soon  Hing  v.  Crowley,  113  U.  S.  703,  5  Sup.  Ct.  Rep.  730,  28  L.  ed.  1145.  .  213 


Hi  TABLE  OF  CASES  CITED. 

SECTION 

Soto  v.  Kroder,  19  Gal.  87 288,  292 

Soulard  v.  United  States,  4  Pet.  511,  7  L.  ed.  938 132,  269,  274,  276 

Southampton  v.  Mecox  Co.,  116  N.  Y.  7,  22  N.  E.  389 382 

South  Boston  Iron  Works  v.  United  States,  34  Ct.  of  Cl.  174 587 

Southern  B.  &  L.  Assn.  v.  Norman,  98  Ky.  294,  56  Am.  St.  Eep.  367,  32 

S.  W.  952,  31  L.  K.  A.  41 240 

Southern  Pacific  E.  Co.  v.  United  States,  38  Fed.  55  587 

Spann  v.  United  States,  21  Ct.  of  Cl.  267   587 

Sparkman  v.  Porter,  1  Paine,  471,  Fed.  Cas.  No.  7143 382 

Spies,  Ex  parts,  123  U.  S.  131,  8  Sup.  Ct.  Eep.  21,  31  L.  ed.  80 211 

Spratt  v.  Spratt,  4  Pet.  408,  7  L.  ed.  902 467 

Spring  Valley  Coal  Co.  v.  City  of  Spring  Valley,  65  HI.  App.  571 548,  549 

Spring    Valley    Coal   Co.   v.    City   of    Spring    Valley,   96    111.    App.    230 

548,549,554 

Sprott  v.  United  States,  87  U.  S.  459,  22  L.  ed.  371  29 

Stamm  v.  Bostwick,  122  N.  Y.  48,  25  N.  E.  233,  9  L.  E.  A.  597 223 

Stamm  v.  Bostwick,  40  Hun,  35 * 258 

Stark  v.  Chesapeake  Ins.  Co.,  7  Cranch,  420,  3  L.  ed.  391 467 

State  v.  Boston  etc.  E.  Co.,  25  Vt.  433 221 

State  v.  Brewster,  7  Vt.  118   312 

State  v.  Brown,  69  Ind.  95,  35  Am.  Eep.  210 554 

State  v.  Campbell,  53  Minn.  356,  55  N.  W.  554,  21  L.  E.  A.  172 385 

State  v.  Columbus  etc.  E.  Co.,  48  Fed.  628 559 

State  v.  De  La  Foret,  2  Nott   &  M.  217 399 

State  v.  District  Board,  76  Wis.  207,  20  Am.    St.  Eep.  58,  44  N.  W.  977, 

7  L.  E.  A.  340 174 

State  v.  Doxtater,  47  Wis.  287,  2  N.  W;  443 216,  385 

State  v.  Foreman,  8  Yerg.  (Tenn.)  256 383 

State  v.  Fosdick,  21  La.  Ann.  256 213 

State  v.  Glover,  112  N.  C.  898,  17  S.  E.  526 337 

State  v.  Hall,  40  Kan.  341,  10  Am.  St.  Eep.  202,  19  Pac.  920  336 

State  v.  Hayward,  3  Eich.  389 213' 

State  v.  Jackson,  36  Fed.  258,  1  L.  E.  A.  370  312 

State  v.  Leidigh,  47  Neb.  132,  66  N.  W.  309  337 

State  v.  Macdonald,  24  Minn.  59 467 

State  v.  Maryland  Institute,  87  Md.  643,  41  Atl.  126 160 

State  v.  McCann,  21  Ohio  St.  198 160 

State  v.  Patterson,  116  Mo.  516,  22  S.  W.  698 337 

State  v.  Eoss,  21  Iowa,  467 312 

State  v.  Eowe,  104  Iowa,  327,  73  N.  W.  834 336,  342 

State  v.  Sais,  47  Tex.  307 288 

State  v.  Simmons,  39  Kan.  262,  18  Pac.  177 312 

State  v.  Smith,  70  Cal.  153,  12  Pac.  121 227 

State  v.  Spiegel,  111  Iowa,  701,  83  N.  W.  722 338 

State  v.  Stearns,  72  Minn.  200,  75  N.  W.  210 52 


TABLE  OF  CASES  CITED.  liii 

SECTION 

State  v.  Stoll,  17  Wall.  425,  21  L.  ed.  654 '.  184 

State  v.  The  Constitution,  42  Cal.  578,  10  Am.  Eep.  303 190 

State  v.  Tilghman,  14  Iowa,  474 225 

State  v.  Vanderpool,  39  Ohio  St.  273,  48  Am.  Rep.  431 336,  337 

State  v.  Wilf orth,  74  Mo.  528,  41  Am.  Rep.  330 213 

Stearns  v.  Minnesota,  179  U.  S.  223,  21  Sup.  Ct.  Rep.  73,  45  L.  ed.  162.  .52,  53 
Steel  v.  St.  Louis  Smelt.  &  Ref.  Co.,  106  U.  S.  447,  1  Sup.  Ct.  Rep.  389, 

27  L.  ed.  226  440 

Steinbach  v.  Moore,  30  Cal.  507 281,  285 

Steinback  v.  Perkins,  58  Cal.  86 292 

Stephens  v.  Cherokee  Nation,  174  U.  S.  445,  19  Sup.  Ct.  Rep.  722,  43  L. 

ed.  1041  375,  376 

Sternaman  v.  Peck,  80  Fed.  883,  26  C.  C.  A.  214 356 

Sternaman  v.  Peck,  83  Fed.  690,  28  C.  C.  A.  377 310 

Stevenson  v.  Bennett,  35  Cal.  432 281 

Stevenson  v.  Dunlap,  7  T.  B.  Mon.  (Ky.)  134 228 

Stevenson  v.  Fain,  116  Fed.  147,  53  C.  C.  A.  467 50 

Stewart  v.  Kahn,  11  Wall.  507,  20  L.  ed.  179 268 

Stewart  v.  Linton,  204  Pa.  207,  53  Atl.  744 458 

St.  Louis  etc.  Ry.  Co.  v.  McCormick,  71  Tex.  660,  9  S.  W.  540,  1  L.  R.  A. 

804 219 

St.  Luke's  Hospital  v.  Barclay,  3  Blatchf.  259,  Fed.  Gas.  No.  12,241 411 

Stockton  v.  Williams,  1  Doug.(Mich.)  546 378 

Stockton  v.  Williams,  Walk.  Ch.  120 115 

Stokes  v.  Dawes,  4  Mason  (U.  S.),  268,  23  Fed.  Gas.  No.  13,477 221 

Stokes  v.  O  'Fallen,  2  Mo.  32  227 

Stone  v.  United  States,  164  U.  S.  380,  17  Sup.  Ct.  Rep.  71,  41  L.  ed.  477. .  590 
Stone  v.  United  States,  167  U.  S.  178,  17  Sup.  Ct.  Rep..  778,  42  L.  ed. 

127  218 

Stoneroad  v.  Stoneroad,  158  U.  S.  248,  15  Sup.  Ct.  Rep.  822,  39  L.  ed. 

969 282,  286,  289 

Stotesburg  v.  United  States,  23  Ct.  of  Cl.  285 584 

Stovall  v.  United  States,  26  Ct.  of  Cl.  240 587 

Strachan  v.  District  of  Columbia,  20  Ct.  of  Cl.  484 583 

Street  v.  New  Orleans,  32  La.  Ann.  577 554 

Strobel's  Estate,  In  re,  39  N.  Y.  Supp.  169,  5  App.  Div.  621 99,  259 

Strother  v.  Lucas,  12  Pet.  410,  9  L.  ed.  1137 273,  274,  275,  288 

Stuart  v.  Laird,  1  Cranch,  299,  2  L.  ed.  115 80 

Stupp,  In  re,  11  Blatchf.  124,  Fed.  Cas.  No.  13,562 309 

Sturges  v.  Collector,  12  Wall.  19,  20  L.  ed.  255 169 

Sturgis  v.  Slacum,  35  Mass.  (18  Pick.)  36  202 

Sullivan 's  Case,  1  Op.  Atty.  Gen.  509 298 

Sullivan  v.  Lumsden,  118  Cal.  668,  50  Pac.  778 440 

Sunol  v.  Hepburn,  1  Cal.  255  288 

Sutliff  v.  Forgey,  1  Cow.  (N.  Y.)  89 227 


liv  TABLE  OF  CASES  CITED. 

SECTION 

Swat  v.  United  States,  Hoffm.  Land.  Cas.  230,  23  Fed.  Gas.  No.  13,680 291 

Swift  v.  Herrera,  9  Tex.  263 273,  288 

Sybrandt  v.  United  States,  19  Ct.  of  Cl.  461 584 

Talton  v.  Mayes,  163  U.  S.  383,  16  Sup.  Ct.  Eep.  986,  41  L.  ed.  197 385 

Tameling  v.  United  States  Freehold  etc.  Co.,  93  U.  S.  644,  23  L.  ed. 

998  281,293 

Taney,  2  Op.  Atty.  Gen.  482 363 

Taunton  v.  Taylor,  116  Mass.  254 213 

Taylor,  In  re,  118  Fed.  196 310 

Taylor  v.  Benham,  46  U.  S.  (5  How.)  233,  12  L.  ed.  130 221,  226 

Taylor  v.  Commonwealth,  29  Ky.  Law  Eep.  714,  96  S.  W.  440 339 

Taylor  v.  Escadon,  40  Cal.  428 291 

Taylor  v.  Morton,  2  Curt.  454,  Fed.  Cas.  No.  13,799 94,  168,  169,  176 

Taylor  v.  Sharp,  108  N.  C.  377,  13  S.  E.  138 218 

Taylor  v.  Thomas,  22  Wall.  479,  22  L.  ed.  789 33 

Telford  v.  Brinkerhoff,  163  111.  433,  45  N.  E.  157 440 

Tellefsen  v.  Fee,  168  Mass.  188,  60  Am.  St.  Eep.  379,  46  N.  E.  562,  45 

L.  E.  A.  481  212,  447,  448 

Terlinden  v.  Ames,  184  U.  S.  270,  22  Sup.  Ct.  Eep.  484,  46  L.  ed. 

534 96,  298,  299,  345,  353,  356,  357 

Territory  v.  Cox,  6  Dak.  521 389 

Teschemacher  v.  Thompson,  18  Cal.  11,  79  Am.  Dec.  151  274 

Texas  v.  White,  7  Wall.  700,  19  L.  ed.  227 25,  33 

Texas  etc.  Ey.  Co.  v.  Eichards,  68  Tex.  375,  4  S.  W.  627 219 

Thebo  v.  Choctaw  Tribe  of  Indians,  66  Fed.  372,  13  C.  C.  A.  519 392 

Theobolds  v.  Duffoy,  9  Mod.  104 221 

Thingvalla  Line  v.  'United  States,  24  Ct.  of  Cl.  255 131 

Thomas,  In  re,  12  Blatchf .  370,  Fed.  Cas.  No.  13,887 96,  244 

Thomas  v.  City  of  Eichmond,  12  Wall.  349,  20  L.  ed.  453 33,  34 

Thomas  v.  Gay,  169  U.  S.  271,  18  Sup.  Ct.  Eep.  342,  42  L.  ed.  743 171 

Thomas  v.  King,  95  Tenn.  70,  31  S.  W.  985 435 

Thomas  v.  Eichmond,  12  Wall.  357,  20  L.  ed.  453 33,  34 

Thompson  v.  Doaksum,  68  Cal.  593,  10  Pac.  199 273,  281,  288,  383 

Thompson  v.  Los  Angeles  Farming  etc.  Co.,  180  U.  S.  72,  21  Sup.  Ct.  Eep. 

289,  45  L.  ed.  432 281,  288 

Thompson,  Succession  of,  9  La.  Ann.  96  202,  221 

Thompson  v.  Thompson,  91  Ala.  595,  8  South.  419,  11  L.  E.  A.  445 435 

Tibbitts  v.  Ah  Tong,  4  Mont.  536,  2  Pac.  759 221 

Tiburcio  Parrott,  In  re,  6  Saw.  349,  1  Fed.  481 198,  200 

Tinn  v.  U.  S.  District  Attorney,  148  Cal.  773,  113  Am.  St.  Eep.  354,  84 

Pac.  152 467 

Tivnam,  In  re,  5  Best  &  S.  645 330 

Tobin  v.  Walkinshaw,  McAll.  151,  23  Fed.  Cas.  No.  14,069 288 

Tom,  The,  29  Ct.  of  Cl.  6« 123 


TABLE  OF  CASES  CITED.  Iv 

SECTION 

Tom,  The,  39  Ct.  of  01.  290 66,  125 

Tom  Mun,  In  re,  47  Fed.  722 191 

Tong  Ah  Ghee,  In  re,  23  Fed.  441 189 

Tong  Wah  Sick,  In  re,  36  Fed.  440,  13  Saw.  497 189 

Tool  Co.  v.  Norris,  2  Wall.  45,  17  L.  ed.  868 446 

Torlade  d '  Azarnbuja  v.  Pereira,  1  Miles,  366  395 

Town  v.  De  Haven,  5  Saw.  149,  Fed.  Cas.  No.  14,113 278,  281 

Townsend  v.  Greeley,  5  Wall.  335,  18  L.  ed.  547 291 

Trenier  v.  Stewart,  101  U.  S.  797,  25  L.  ed.  1021 288 

Trenton,  The,  4  Fed.  657 435 

Trezevant  v.  Osborn,  3  Brev.  (S.  C.)  29 226 

Trimble  v.  Smithers,  1  Tex.  790 273,  278,  281 

Trimbles  v.  Harrison,  1  B.  Mon.  (Ky.)  140 226,  251 

Tripp  v.  Spring,  5  Saw.  209,  24  Fed.  Cas.  No.  14,180  274,  292 

Trustees  "of  University  v.  Miller,  14  N.  C.  (3  Dev.)  188  221 

Tsu  Tse  Me,  In  re,  81  Fed.  565 197 

Tucker  v.  Alexandroff,  183  U.  S.  424,  22  Sup.  Ct.  Rep.  195,  46  L.  ed. 

264 116,  117,  299,  333,  367 

Tucker  v.  Burris,  13  La.  Ann.  614 281 

Tuffree  v.  Polhemus,  108  Cal.  670,  41  Pac.  808 285,  286,  288 

Tully,  In  re,  20  Fed.  812 318 

Tung  Yeong,  In  re,  19  Fed.  185,  9  Saw.  620 176,  189,  191 

Turner  v.  American  Baptist  Missionary  Union,  5  McLean,  347,  Fed.  Cas. 

No.  14,251 185 

Turner  v.  Baptist  Union,  5  McLean,  344,  25  Fed.  Cas.  No.  14,250 85,  87 

Turner  v.  Donnelly,  70  Cal.  604,  12  Pac.  469 292 

Two  Portuguese  Seamen,  Case  of,  2  Op.  Atty.  Gen.  559 298 

Uhlig  v.  Garrison,  2  Dak.  Ter.  96,  2  N.  W.  255 389 

Underbill  v.  City  of  Manchester,  45  N.  H.  214 552,  554 

United  States  v.  Ah  Fawn,  57  Fed.  591 191 

United  States  v.  Alaska  Assn.,  79  Fed.  156 379 

United  States  v.  American  Sugar  Eef.  Co.,  202  U.  S.  563,  26  Sup.  Ct. 

Eep.  717,  50  L.  ed.  1149 88,  89,  90 

United  States  v.  Amistead,  15  Pet.  518,  10  L.  ed.  826 117 

United  States  v.  Arredondo,  6  Pet.  738,  8  L.  ed.  547 

: 2,  86,  91,  132,  140,  275,  288 

United  States  v.  Auger,  153  Fed.  671 381 

United  States  v.  Auguisola,  1  Wall.  352,  17  L.  ed.  613 125 

United  States  v.  Avedondo,  6  Pet.  758,  8  L.  ed.  547 61 

United  States  v.  Baca,  184  U.  S.  653,  22  Sup.  Ct.  Eep.  541,  46  L.  ed. 

733 281,  293 

United  States  v.  356  Bales  of  Cotton,  1  Pet.  512,  7  L.  ed.  255 267 

United  States  v.  Barber,  74  Fed.  484,  20  C.  C.  A.  616,  41  U.  S.  App.  424.  580 
United  States  v.  Barnaby,  51  Fed.  23 .  386 


Ivi  TABLE  OF  CASES  CITED. 

SECTION 

United  States  v.  Bayard,  127  U.  8.  251,  8  Sup.  Ct.  Eep.  1156,  32  L.  ed. 

159  579 

United  States  v.  Benner,  Fed.  Gas.  No.  14,568,  Baldw.  234 395,  400 

United  States  v.  Borcherling,  185  U.  S.  223,  22  Sup.  Ct.  Rep.  607,  46  L. 

ed.  884  . 583,  584 

United  States  v.  Boyd,  68  Tex.  580 386 

United  States  v.  Boyd,  83  Fed.  554,  42  U.  S.  App.  637,  27  C.  C.  A. 

592 388,  389 

United  States  v.  Bridleman,  7  Saw.  251,  7  Fed.  902  171 

United  States  v.  Burdick,  1  Dak.  143,  46  N.  W.  573 388 

United  States  v.  Burr,  159  U.  S.  78,  15  Sup.  Ct.  Rep.  1002,  40  L.  ed.  82 ...  90 
United  States  v.  Camou,  171  U.  S.  277,  18  Sup.  Ct.  Rep.  855,  43  L.  ed. 

163  !  293 

United  States  v.  Camou,  184  U.  S.  572,  22  Sup.  Ct.  Rep.  505,  46  L.  ed. 

694 293 

United  States  v.  Castant,  12  How.  437,  13  L.  ed.  1056. 288 

United  States  v.  Castillero,  2  Black,  17,  17  L.  ed.  360 291 

United  States  v.  Catheart,  1  Bond,  556,  25  Fed.  Cas.  No.  14,756 32 

United  States  v.  Certain  Property,  1  Ariz.  40,  25  Pac.  520 388 

United  States  v.  Chaves,  159  U.  S.  452,  16  Sup.  Ct.  Rep.  57,  40  L.  ed. 

215 273,  274 

United  States  v.  Chavez,  175  U.  S.  509,  20  Sup.  Ct.  Rep.  159,  44  L.  ed. 

255 293 

United  States  v.  Chew  Cheong,  61  Fed.  200 191 

United  States  v.  Chin  Quong  Look,  52  Fed.  203 189 

United  States  v.  Chong  Sam,  47  Fed.  878 191 

United  States  v.  Chung  Fung  Sun,  63  Fed.  261 191 

United  States  v.  Clarke,  16  Pet.  232,  10  L.  ed.  947. . 273,  278,  288 

United  States  v.  Cleveland  etc.  Cattle  Co.,  33  Fed.  323 293 

United  States  v.  Conway,  175  U.  S.  60,  20  Sup.  Ct.  Rep.  13,  44  L.  ed. 

72 292,  293 

United  States  v.  Cook,  19  Wall.  591,  22  L.  ed.  210 380 

United  States  v.  Cooper,  Whart.  St.  Tr.  659,  Fed.  Cas.  No.  14,865 318 

United  States  v.  Covilland,  1  Black,  339,  17  L.  ed.  40 292 

United  States  v.  Craig,  28  Fed.  795 175 

United  States  v.  D'Auterieve,  15  How.  14,  14  L.  ed.  580 288 

United  States  v.  D'Auterieve,  101  U.  S.  700,  25  L.  ed.  869 288 

United  States  v.  Davis,  131  U.  S.  39,  9  Sup.  Ct.  Rep.  657,  33  L.  ed.  93.  .  590 

United  States  v.  Davis,  Fed.  Cas.  No.  14,932,  2  Sum.  482 308 

United  States  v.  Diekelman,  92  U.  S.  520,  23  L.  ed.  742 129,  557 

United  States  v.  Dan  On,  49  Fed.  569 191 

United  States  v.  Douglas,  17  Fed.  634 191 

United  States  v.  Ducros,  15  How.  38,  14  L.  ed.  591 288 

United  States  v.  Earl,  9  Saw.  82,  17  Fed.  77 388 

United  States  v.  Eaton,  169  U.  S.  331,  18  Sup.  Ct.  Rep.  374,  42  L.  ed. 

767  .  .   397 


TABLE  OF  CASES  CITED.  Ivii 

SECTION 

United  States  v.  Ewing,  140  U.  S.  142,  11  Sup.  Ct.  Rep.  743,  35  L.  ed. 

388 587 

United  States  v.  Fitch,  70  Fed.  578,  17  C.  C.  A.  233 587 

United  States  v.  Fletcher,  47  U.  S.  664,  13  Sup.  Ct.  Rep.  434,  37  L.  ed. 

322 587 

United  States  v.  Flint,  4  Saw.  42,  25  Fed.  Cas.  No.  15,121 273,  281 

United  States  v.  Flynn,  1  Dill.  452,  Fed.  Cas.  No.  15,124 388 

United  States  v.  Fossatt,  21  How.  445,  16  L.  ed.  186 288,  291,  292 

United     States     v.    43    Gallons     of     Whisky,   93    U.    S.    188,    23    L.    ed. 

846 139,  185,  388 

United  States  v.  Gardner,  133  Fed.  285,  66  C.  C.  A.  663 381 

United  States  v.  Gaynor,  L.  R.  App.  Cas.  128 356 

United  States  v.  Gee  Lee,  50  Fed.  271,  1  C.  C.  A.  516,  7  U.  S.  App.  183.  ..    189 

United  States  v.  Gleason,  78  Fed.  397 467 

United  States  v.  Gleeson,  124  U.  S.  255,  8  Sup.  Ct.  Rep.  502,  31  L.  ed.  421.  590 
United  States  v.  Great  Fall  Mtg.  Cfc.,  112  U.  S.  645,  5  Sup.  Ct.  Rep.  306, 

28  L.  ed.  846 ,. . .   584 

United  States  v.  Green,  185  U.  S.  256,  22  Sup.  Ct.  Rep.  640,  40  L.  ed. 

898 293 

United  States  v.  Greene,  136  Fed.  766 : 347 

United  States  v.  Gue  Lin,  176  U.  S.  459,  20  Sup.  Ct.  Rep.  415,  44  L.  ed. 

544 186 

United  States  v.  Hancock,  12  Saw.  389,  30  Fed.  856 440 

United  States  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  Rep.  294,  43  L.  ed. 

556 590 

United  States  v.  King  Quong  Chow,  53  Fed.  233 191 

United  States  v.  Holliday,  3  Wall.  407,  18  L.  ed.  186 388,  389 

United  States  v.  Home  Ins.  Co.,  22  Wall.  103,  22  L.  ed.  816 34 

United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  8  Sup.  Ct.  Rep.  663,  31 

L.  ed.  591 189,  191 

United  States  v.  Ju  Toy,  198  U.  S.  253,  25  Sup.  Ct.  Rep.  644,  49  L.  ed. 

1040 192 

United  States  v.  Kagama,  118  U.  S.  379,  6  Sup.  Ct.  Rep.  1111,  30  L.  ed. 

230 385,  390,  391 

United  States  v.  Kelly,  89  Fed.  946,  32  C.  C.  A.  441 - 590 

United  States  v.  King,  3  How.  773,  11  L.  ed.  824 281,  288 

United  States  v.  King,  7  How.  883,  11  L.  ed.  829 288 

United  States  v.  Knox,  128  U.  S.  230,  9  Sup.  Ct.  Rep.  63,  32  L.  ed.  465.  ..   587 

United  States  v.  La  Abra  Silver  Min.  Co.,  29  Ct.  of  Cl.  432 563 

United  States  v.  La  Jeune  Eugenie,  26  Fed.  Cas.  No.  15,551,  2  Mason, 

409 434 

United  States  v.  Laverty,  3  Mart.  (La.)  733,  Fed.  Cas.  No.  15,569a 469 

United  States  v.  Lee  Hoy,  48  Fed.  825 191 

United  States  v.  Lee  Yen  Tai,  185  U.  S.  213,  22  Sup.  Ct.  Rep.  629,  46 

L.  ed.  878 178,  180,  182 

United  States  v.  Lee  Yung,  63  Fed.  520 189 


Iviii  TABLE  OF  CASES  CITED. 

SECTION 

United  States  v.  Liddle,  Fed.  Gas.  No.  15,598,  2  Wash.  C.  C.  205 396 

United  States  v.  Loo  Way,  68  Fed.  475 191 

United  States  v.  Lucero,  1  N.  Mex.  429  277 

United  States  v.  Lynde,  11  Wall.  633,  20  L.  ed.  230 132 

United  States  v.  Martinez,  184  U.  S.  441,  22  Sup.  Ct.  Kep.  422,  46  L.  ed. 

632 293 

United  States  v.  McBratney,  104  U.  S.  623,  26  L.  ed.  870 171 

United  States  v.  McCrory,  91  Fed.  295,  33  C.  C.  A.  515 588 

United  States  v.  McCullagh,  13  How.  216,  14  L.  ed.  118 288 

United  States  v.  Minor,  26  Fed.  752 440 

United  States  v.  Minor,  114  U.  S.  233,  5  Sup.  Ct.  Eep.  836,  29  L.  ed.  110.   440 

United  States  v.  Morano,  1  Wall.  400,  17  L.  ed.  633 132,  273,  278 

United  States  v.  Morillo,  1  Wall.  706,  17  L.  ed.  626 291 

United  States  v.  Ngum  Lun  May,  153  Fed.  209   186 

United  States  v.  Norsch,  42  Fed.  417 467 

United  States  v.  North  Carolina,  136  U.*8.  211,  10  Sup.  Ct.  Eep.  920,  34 

L.  ed.  336 47,579 

United  States  v.  Northern  Pacific  B.  Co.,  95  Fed.  982 440 

United  States  v.  Old  Settlers,  148  U.  S.  469,  13  Sup.  Ct.  Kep.  667,  37  L. 

ed.  525   ; 106 

United  States  v.  One  Thousand  Five  Hundred  Bales  Cotton,  27  Fed.  Gas. 

No.  15,958 32 

United  States  v.  Ortega,  Fed.  Gas.  No.  15,971,  4  Wash.  C.  C.  531  ...  .395,  400 

United  States  v.  Osborne,  6  Saw.  408,  2  Fed.  59 386,  388 

United  States  v.  Pacheco,  20  How.  261,  15  L.  ed.  820 291 

United  States  v.  Paine  Lumber  Co.,  206  U.  S.  467,  51  L.  ed.  1139,  15 

Sup.  Ct.  Advanced  Sheets,  697 380 

United  States  v.  Parrott,  McAll,  271,  27  Fed.  Gas.  No.  15,998 281,  288 

United  States  v.  Parrott,  McAll,  447,  27  Fed.  Gas.  No.  15,999 281 

United  States  v.  Payne,  2  McCrary,  289,  8  Fed.  883 121 

United  States  v.  Payson,  1  Cal.  Law  J.  325,  27  Fed.  Cas.  No.  16,016 292 

United  States  v.  Peralta,  99  Fed.  618 281 

United  States  v.  Peralta,  102  Fed.  1006 281 

United  States  v.  Percheman,  7  Pet.  51,  8  L.  ed.  604.  ..85,  87,  120,  274,  275,  288 

United  States  v.  Philadelphia,  11  How.  609,  13  L.  ed.  834 288 

United  States  v.  Piaza,  133  Fed.  998   346,  352 

United  States  v.  Pico,  23  How.  326,  16  L.  ed.  464 132 

United  States  v.  PiUerin,  13  How.  9,  14  L.  ed.  28 288 

United  States  v.  Pridgeon,  153  U.  S.  48,  14  Sup.  Ct.  Eep.  746,  38  L.  ed. 

631 410 

United  States  v.  Power,  11  How.  570,  13  L.  ed.  817 288 

United  States  v.  Eauscher,  119  U.  S.  407,  7  Sup.  Ct.  Eep.  234,  30  L.  ed. 

425 36,  38,  246,  298,  305,  336,  341,  353 

United  States  v.  Bepentigny,   5  Wall.   211,  18  L.  ed.  627 274 

United  States  v.  Eeynes,  9  How.  127,  13  L.  ed.  74   86,  132,  288 


TABLE  OF  CASES  CITED.  lix 

SECTION 

United  States  v.  Kio  Grande  Dam  &  I.  Co.,  9  N.  Mex.  292,  51  Pac.  674.  ..  297 
United  States  v.  Eio  Grande  Dam  &  I.  Co.,  174  U.  S.  690,  19  Sup.  Ct.  Eep. 

770,  43  L.  ed.  1136 297 

United  States  v.  Ritchie,  17  How.  525,  15  L.  ed.  236 291,  469 

United  States  v.  Bobbins,  Fed.  Cas.  No.  16,175  318 

United  States  v.  Roselius,  15  How.  36,  14  L.  ed.  590 288 

United  States  v.  Sa-coo-da-cot,  1  Abb.  (U.  S.)  383.  Fed.  Cas.  No.  16,212, 

1  Dill.  276 .' 216 

United  States  v.  Sandavol,  167  U.  S.  278,  17  Sup.  Ct.  Eep.  868J  42  L.  ed. 

168  293 

United  States  v.  San  Jacinto  Tin  Co.,  125  U.  S.  273,  8  Sup.  Ct. 

Eep.  850,  31  L.  ed.  747 292 

United  States  v.  Santa  Fe,  165  U.  S.  675,  17  Sup.  Ct.  Eep.  472,  41  L.  ed. 

874  293 

United  States  v.  Saunders,  79  Fed.  407,  24  C.  C.  A.  649 588 

United  States  v.  Schooner  Peggy,  1  Cranch,  103,  2  L.  ed.  49  132,  234 

United  States  v.  Seveloff,  2  Saw.  317,  Fed.  Cas.  No.  16,252 388 

United  States  v.  Shaw-Mux,  2  Saw.  365,  Fed.  Cas.  No.  16,268 388 

United  States  v.  Sherman,  98  U.  S.  565,  25  L.  ed.  235 580 

United  States  v.  Sing  Lee,  71  Fed.  6iO 191 

United  States  v.  State  of  New  York,  160  U.  S.  619,  16  Sup.  Ct.  Eep.  410, 

40  L.  ed.  551 580 

United  States  v.  Sutter,  21  How.  170,  16  L.  ed.  119 291 

United  States  v.  Texas,  143  U.  S.  640,  12  Sup.  Ct.  Eep.  488,  36  L.  ed. 

291  44,  47 

United  States  v.  The  Geo.  E.  Wilton,  43  Fed.  606 191 

United  States  v.  The  Peggy,  1  Cranch,  109,  2  L.  ed.  49 132,  234 

United  States  v.  Throckmorton,  98  U.  S.  61,  25  L.  ed.  153 273,  292,  440 

United  States  v.  Tinsley,  68  Fed.  433,  15  C.  C.  A.  507 590 

United  States  v.  Trumbull,  46  Fed.  755 191 

United  States  v.  Trumbull,  48  Fed.  94 424 

United  States  v.  Turner,  11  How.  663,  13  L.  ed.  857 246 

United  States  v.  Waterman,  14  Pet.  478,  10  L.  ed.  550 288 

United  States  v.  Watts,  8  Saw.  370,  14  Fed.  130 298,  336 

United  States  v.  Weld,  127  U.  S.  51,  8  Sup.  Ct.  Eep.  1000,  32  L.  ed.  62. .  583 

United  States  v.  White,  9  Saw.  127,  17  Fed.  562 440 

United  States  v.  Wiggins,  14  Pet.  334,  10  L.  ed.  481 288 

United  States  v.  Winslow,  3  Saw.  341,  Fed.  Cas.  No.  16,742 388 

United  States  v.  Wong  Ah  Hung,  62  Fed.  1005 191 

United  States  v.  Wong  Dep  Ken,  57  Fed.  206 191 

United  States  v.  Wong  Kim  Ark,  169  U.  S.  679,  18  Sup.  Ct.  Eep.  456,  42 

L.  ed.  901  183,188 

United  States  v.  Wong  Sing,  51  Fed.  79 191 

United  States  v.  Wright,  Fed.  Cas.  No.  16,774  410 

United  States  v.  Yorba,  1  Wall.  412,  17  L.  ed.  635 .  132 


Ix  TABLE  OF  CASES  CITED. 

SECTION 

United  States  v.  Yunkers,  60  Fed.  641,  9  C.  C.  A.  171   590 

University  v.  Miller,  14  N.  C.  188 260 

Utassy  v.  Gildinghagen,  132  Mo.  53,  33  S.  W.  444  226,  227 

Valareno  v.  Thompson,  7  N.  Y.  576 411,  412 

Valentine  v.  Sloss,  103  Cal.  215,  37  Pac.  326 274 

Valk  v.  United  States,  29  Ct.  of  Cl.  62 214 

Vance  v.  Burbank,  101  U.  S.  514,  25  L.  ed.  925 440 

Vanderput,  The,  37  Ct.  of  Cl.  396  567 

Vandersliee  v.  Hanks,  3  Cal.  38  276 

Vandervelpen,  In  re,  Fed.  Cas.  No.  16,844,  14  Blatchf .  137 322 

Van  Epps  v.  Walsh,  1  Woods,  598,  28  Fed.  Cas.  No.  16,850  34 

Vaux  v.  Nesbit,  1  McCord  Eq.  352 221,  223,  226 

Verden  v.  Coleman,  1  Black,  474,  17  L.  ed.  162 106 

Vicksburg  S.  &  P.  R.  Co.  v.  Dennis,  116  U.  S.  665,  6  Sup.  Ct.  Rep.  625,  29 

L.  ed.  770  52 

Virginia  v.  Tennessee,  148  U.  S.  518,  13  Sup.  Ct.  Rep.  728,  37  L.  ed.  537 

41,  42,  49,  127 

Virginia  v.  West  Virginia,  11  Wall.  39,  20  L.  ed.  67 43,  44,  46 

Vogt,  In  re,  44  How.  Pr.  171 * 308 

Vogt,  In  re,  50  N.  Y.  321 308 

Wacker  v.  Wacker,  26  Mo.  426  226 

Waddingham  v.  Robledo,  6  N.  Mex.  347,  28  Pac.  662 281 

Wadge,  In  re,  15  Fed.  864,  16  Fed.  332,  21  Blatchf.  300 350,  351 

Wadsworth  v.  Boysen,  148  Fed.  771 183 

Wallace  v.  State,  33  Tex.  445  34 

Walters  v.  Jewett,  28  Tex.  192 281 

Walton  v.  United  States,  61  Fed.  487  580 

Wan  Shing  v.  United  States,  140  U.  S.  424,  11  Sup.  Ct.  Rep.  729,  35  L.  ed. 

503  189 

Wan-Zop-E- Ah  v.  Board  of  Commissioners,  5  Wall.  760,  18  L.  ed.  675 ...  390 

Ward  v.  Flood,  48  Cal.  49,  17  Am.  Rep.  405 160,  161 

Ward  v.  Louisville,  16  B.  Mon.  (Ky.)  184 545 

Ward  v.  Mulford,  32  Cal.  365 273,  274 

Ward  v.  Race  Horse,  163  U.  S.  511,  16  Sup.  Ct.  Rep.  1078,  41  L.  ed. 

246  167,  170 

Ward  v.  State,  102  Tenn.  727,  52  S.  W.  997. 336 

Ware  v.  Hylton,  3  Ball.  272,  1  L.  ed.  568 2,  9,  132,  140,  150,  166 

Ware  v.  Wisner,  50  Fed.  319 226 

Washburn,  In  re,  3  Wheel.  C.  C.  473 308 

Washington  Irr.  Co.  v.  Krutz,  119  Fed.  286,  56  C.  C.  A.  1 446 

Waterman  v.  Smith,  13  Cal.  373 292 

Watertown  v.  Mayo,  109  Mass.  315,  12  Am.  Rep.  694 213 

Watriss  v.  Reed,  99  Cal.  134,  33  Pac.  775 291 


TABLE  OF  CASES  CITED.  Ixi 

SECTION 

Watson  v.  Donnelly,  28  Barb.  (N.  Y.)  653 256 

Watson  v.  Murray,  8  C.  E.  Green  (23  N.  J.  Eq.),  257 446 

Wau-pe-Man-Qua  v.  Aldrich,  28  Fed.  497 390,  391,  392 

Webb  v.  United  States,  20  Ct.  of  Cl.  496 586 

Weber  v.  Harbor  Commissioners,  18  Wall.  57,  21  L.  ed.  798 '.  . .  274 

Weiberg  v.  The  Brig  St.  Oloff,  2  Pet.  Adm.  432,  Fed.  Gas.  No.  17,357 447 

Weir  v.  Vail,  65  Gal.  470,  4  Pac.  425  440 

Wellhaven,  The,  55  Fed.  80 212,  447 

West  v.  Gochran,  58  U.  S.  (17  How.)  403,  15  L.  ed.  110 .282 

Western  College  of  Homeopathic  Medicine  v.  Cleveland,  12  Ohio  St. 

375 545,546 

West  Virginia  v.  United  States,  37  Ct.  of  Cl.  205  586 

Whitaker's  Administrator  v.  English,  1  Bay,  15  122 

White  v.  Cannon,  6  Wall.  443,  18  L.  ed.  923 31 

White  v.  Martin,  66  Tex.  341,  17  S.  W.  727 28 1 

White  v.  Sabariego,  23  Tex.  243 227 

White  v.  Wells,  5  Mart.  (O.  S.)  652 288 

White  v.  White,  2  Met.  (Ky.)  185 226,  227 

Whitney  v.  Eobertson,  124  U.  S.  190,  8  Sup.  Ct.  Rep.  456,  31  L.'ed. 

386 94,  168,  169,  176,  185 

Whitten  v.  Tomlinson,  160  U.  S.  242,  16  Sup.  Ct.  Rep.  301,  40  L.  ed. 

412 130,  353,  354 

Wilderanders  v.  State,  64  Tex.  133 225 

Wieland  v.  Renner,  65  How.  Pr.  245 257 

Wilcke  v.  Wilcke,  102  Iowa,  173,  71  N.  W.  201 250 

Wilcox  v.  Luco,  118  Cal.  639,  62  Am.  St.  Rep.  305,  45  L.  R.  A.  579,  50 

Pac.  758,  45  Pac.  676 * 401,  414,  415 

Wildenhaus '  Case,  120  U.  S.  1,  7  Sup.  Ct.  Rep.  285,  30  L.  ed.  565 353 

Wildenhaus,  In  re,  28  Fed.  924 447 

Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1,  8  Sup.  Ct.  Rep.  811, 

31  L.  ed.  629 '.,/..  174 

William,  The,  23  Ct.  of  Cl.  201 98 

Williams,  14  Op.  Atty.  Gen.  281 309 

Williams  v.  Armroyd,  7  Cranch,  423,  3  L.  ed.  392 435 

Williams  v.  Bennett,  1  Tex.  Civ.  App.  498,  20  S.  W.  856 221,  226 

Williams  v.  Bruffy,  96  U.  S.  183,  24  L.  ed.  716 24,  25 

Williams  v.  City  of  New  Orleans,  23  La.  Ann.  507 552 

Williams  v.  Heard,  140  U.  S.  529,  11  Sup.  Ct.  Rep.  885,  35  L.  ed.  550 571 

Williams  v.  Oliver,  12  How.  124,  13  L.  ed.  921 108,  112 

Williams  v.  Williams,  130  N.  Y.  198,  27  Am.  St.  Rep.  519,  29  N.  E.  99, 

14  L.  R.  A.  222 435 

Williams  v.  Wilson,  Mart.  &  Y.  (Tenn.)  248 221 

Wilson  v.  Shaw,  204  U.  S.  24,  51  L.  ed.  351 144 

Wilson  v.  Smith,  5  Yerg.  (Tenn.)  379 273,  288 

Wilson  v.  Wall,  6  Wall.  83,  18  L.  ed.  727 94,  246,  247 


Ixii  TABLE  OF  CASES  CITED. 

SECTION 

Windle,  Matter  of,  2  Edw.  Ch.  585 221 

Wing  Chung  v.  Los  Angeles,  47  Cal.  531 546,  548,  549,  550 

Wing 's  Case,  6  Op.  Atty.  Gen.  431 298 

Wirt,  1  Op.  Atty.  Gen.  28,  392 132 

Wirt,  1  Op.  Atty.  Gen.  275 238 

Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  288,  8  Sup.  Ct.  Eep.  1372,  32  L. 

ed.  242 '. 48,435 

Wiseman  v.  Eastman,  21  Wash.  171,  57  Pac.  400 440 

Wong  Wing  v.  United  States,  163  U.  S.  228,  16  Sup.  Ct.  Hep.  977,  41  L. 

ed.  140  196,  197 

Wood  v.  McCann,  6  Dana,  366 446 

Wood  v.  United  States,  16  Pet.  362,  10  L.  ed.  993 184 

Woodworth  v.  Fulton,  1  Cal.  295 273 

Worcester  v.  Georgia,  6  Pet.  581,  8  L.  ed.  483 2,  109,  388 

Wormouth  v.  Gardner,  112  Cal.  506,  44  Pac.  806 291 

Wo  Tai  Li,  In  re,  48  Fed.  668 191 

Wright,  In  re,  123  Fed.  463 314,  344 

Wright  v.  Henkel,  190  U.  S.  59,  23  Sup.  Ct.  Eep.  785,  47  L.  ed.  954 314,  344 

Wright'  v.  Nagle,  101  U.  S.  791,  25  L.  ed.  923 52 

Wright  v.  Saddler,  20  N.  Y.  320 221 

Wulf  v.  Manuel,  9  Mont.  279,  23  Pac.  723 221 

Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  B.  A.  84 

221,  240,  244,  245 

Wyman,  Petitioner,  In  re,  191  Mass.  276,  114  Am.  St.  Eep.  601,  77  N.  E. 

379 125,131,202 

Wynne  v.  Morris,  20  How.  5,  15  L.  ed.  801 107 

Wy  Shing,  In  re,  36  Fed/553,  13  Saw.  530 187 

Yamataya   v.   Fisher,   189  U.   S.   86,   23   Sup.   Ct.   Eep.   611,   47   L.   ed. 

721 186 

Yates  v.  lams,  10  Tex.  168 226 

Yeaker's  Heirs  v.  Yeaker,  4  Met.  (61  Ky.)  33,  81  Am.  Dec.  530 92,  252 

Yeatman  v.  Bradford,  44  Fed.  538 440 

Yerger,  Ex  parte,  8  Wall.  105,  19  L.  ed.  339 184 

Yick  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  Eep.  1064,  30  L.  ed. 

220  195,  213 

Yot  Sang,  In  re,  75  Fed.  984 195 

Young  v.  Peck,  21  Wend;  (N.  Y.)  389 227 

Young  v.  Thompson,  14  Colo.  App.  315,  59  Pac.  1037 446 

Young  v.  United  States,  97  U.  S.  39,  24  L.  ed.  992 434,  558 

Yturbide  v.  United  States,  22  How.  290,  16  L.  ed.  342 291 

Yung  Sing  Hee,  In  re,  36  Fed.  437,  13  Saw.  482 187 


TABLE  OF  CASES  CITED  IN  APPENDICES. 


PAGE 

Adultt,  In  re,  55  Fed.  376 *. 613 

Ah  Chong,  In  re,  6  Saw.  451,  2  Fed.  733 632 

Ah  Fong,  In  re,  3  Saw.  144,  Fed.  Gas.  No.  102 632 

Ah  Kee,  In  re,  22  Blatchf .  520,  22  Fed.  519 633 

Ah  Lung,  In  re,  9  Saw.  306,  18  Fed.  28 633 

Ah  Moy,  In  re,  10  Saw.  345,  21  Fed.  785 633 

Ah  Ping,  In  re,  23  Fed.  329. 633 

Ah  Quam,  In  re,  10  Saw.  222,  21  Fed.  182 633 

Ailing  v.  United  States,  114  U.  S.  562,  5  Sup.  Ct.  Eep.  1080,  29  L.  ed. 

272 711 

American  Ins.  Co.  v.  365  Bales  of  Cotton,  1  Pet.  511,  7  L.  ed.  243 751 

American  Sugar  E.  Co.  v.  Bidwell,  124  Fed.  677 757 

Amiable  Isabella,  The,  6  Wheat.  1,  5  L.  ed.  191 753 

Armstrong  v.  Bidwell,  124  Fed.  690 757 

Armstrong  v.  United  States,  182  U.  S.  243,  21  Sup.  Ct.  Eep.  827,  45  L.  ed. 

1086 757 

Atocha,  In  re,  17  Wall.  439,  21  L.  ed.  696 709 

Atocha  v.  United  States,  8  Ct.  of  Cl.  427 707,  710 

Bahuaud  v.  Bize,  105  Fed.  487 656 

Baker  v.  Portland,  5  Saw.  566,  Fed.  Gas.  No.  777 632 

Baldwin  v.  Franks,  120  U.  S.  678,  7  Sup.  Ct.  Eep.  656,  30  L.  ed.  766 633 

Balensi,  In  re,  120  Fed.  864 657 

Bartram  v.  Eobertson,  122  U.  S.  116,  7  Sup.  Ct.  Eep.  1115,  30  L.  ed.  118. .   643 

Baruch,  In  re,  41  Fed.  472 613 

Basse  v.  Brownsville,  154  U.  S.  610,  14  Sup.  Ct.  Eep.  1195,  38  L.  ed.  651. .   709 

Behrendt,  In  re,  22  Fed.  699,  23  Blatchf.  40 740 

Bello  Corrunes,  The,  6  Wheat.  152,  5  L.  ed.  229 753 

Benson,  In  re,  34  Fed.  649 710 

Benson  v.  McMahon,  127  U.  S.  457,  8  Sup.  Ct.  Eep.  1240,  32  L.  ed.  234. ..   710 

Blight  'a  Lessee  v.  Eochester,  7  Wheat.  535,  5  L.  ed.  516 662,  663 

Boteller  v.  Dominguez,  130  U.  S.  238,  9  Sup.  Ct.  Eep.  525,  32  L.  ed.  926. .   709 

Breen,  In  re,  75  Fed.  458 676 

Brin  v.  Shine,  187  U.  S.  181,  23  Sup.  Ct.  Eep.  98,  47  L.  ed.  130 744 

British  Prisoners,  The,  1  Wood.  &  M.  66,  Fed.  Cas.  No.  12,734 669 

Bryan  v.  Kennett,  113  U.  S.  179,  5  Sup.  Ct.  Eep.  407,  28  L.  ed.  908. .  .650,  653 
Bryant,  In  re,  80  Fed.  282 670,  676 

(Ixiii) 


Ixiv  TABLE  OF  CASES  CITED  IN  APPENDICES. 

PAGE 

Bryant  v.  United  States,  167  U.  S.  304,  42  L.  ed.  941,  17  Sup.  Ct.  Eep. 

744    669,676 

Burchard,  The,  42  Fed.  608   660 

Burthe  v.  Denis,  133  U.  S.  514,  10  Sup.  Ct.  Eep.  335,  33  L.  ed.  768 657 

Callsen  v.  Hope,  75  Fed.  758 743 

Cantini  v.  Tillman,  54  Fed.  969 695 

Carrier,  In  re,  57  Fed.  578 670 

Carver  v.  Jackson,  4  Pet.  1,  7  L.  ed.  761 662 

Castro  v.  De  Uriarte,  12  Fed.  250,  16  Fed.  93 756 

Chae  Chan  Ping,  In  re,  13  Saw.  486,  36  Fed.  431 633 

Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  9  Sup.  Ct.  Kep.  623,  32 

L.  ed.  1068 632,633 

Chapman  v.  Toy  Long,  4  Saw.  28,  Fed.  Gas.  No.  2,610 632 

Charleston,  In  re,  34  Fed.  531 670 

Cherac  v.  Cherac,  2  Wheat.  259,  4  L.  ed.  234 652 

Chew  Heong,  In  re,  10  Saw.  361,  21  Fed.  791 633 

Chew  Heong  v.  United  States,  112  U.  S.  536,  5  Sup.  Ct.  Eep.  255,  28  L. 

ed.  770 63'J 

Chin  Ah  On,  In  re,  9  Saw.  343,  18  Fed.  506 63:> 

Chinese  Laborer,  Case  of,  21  Fed.  791 633 

Chinese  Merchant,  Case  of,  7  Saw.  546,  13  Fed.  605 633 

Chinese  Wife,  Case  of,  21  Fed.  785 633 

Chouteau  v.  Eckhart,  2  How.  344,  11  L.  ed.  293 650,  65.S 

Chung  Toy  Ho,  In  re,  42  Fed.  398,  9  L.  E.  A.  204 633 

Cohn  v.  Jones,  100  Fed.  639 670 

Comegys  v.  Vasse,  1  Pet.  193,  7  L.  ed.  108 754 

Comegys  v.  Vasse,  4  Wash.  C.  C.  570,  Fed.  Cas.  No.  16894 754 

Cortes,  In  re,  42  Fed.  47 756 

Cosgrove  v.  Winney,  174  U.  S.  641,  19  Sup.  Ct.  Eep.  598,  43  L.  ed.  897.  .  676 

Coy,  Ex  parte,  32  Fed.  911 710 

Craig  v.  Eadford,  3  Wheat.  594,  4  L.  ed.  467 663 

Cross  v.  Harrison,  16  How.  164,  14  L.  ed.  889 709 

Cross,  In  re,  43  Fed.  517 670 

Grossman  v.  United  States,  182  U.  S.  221,  21  Sup.  Ct.  Eep.  742,  45  L.  ed. 

1065 757 

Crystal  Springs  Land  &  Water  Co.  v.  Los  Angeles,  76  Fed.  148 710 

Gushing  v.  United  States,  22  Ct.  of  Cl.  1 652 

Dainese  v.  Hale,  91  U.  S.  13,  23  L.  ed.  190,  1  McAr.  (D.  C).  86 729 

Dainese  v.  United  States,  15  Ct.  of  Cl.  64 729 

Davies  v.  Police  Jury  of  Concordia,  9  How.  280,  13  L.  ed.  138 650,  653 

De  Geofroy  v.  Eiggs,  133  U.  S.  258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed.  642 

652,    656 

De  Giacoma,  In  re,  12  Blatchf.  391,  Fed.  Cas.  No.  3747 .6 


TABLE  OF  CASES  CITED  IN  APPENDICES.  Ixv 


PAGE 

Delasus  v.  United  States,  9  Pet.  117,  9  L.  ed.  71 650 

De  Lema  v.  Bidwell,  182  U.  S.  1,  21  Sup.  Ct.  Eep.  743,  45  L.  ed.  1041 757 

De  Pass  v.  Bidwell,  124  Fed.  615 757 

Diekelman  v.  United  States,  8  Ct.  of  Cl.  371 739 

Doe  v.  Braden,  16  How.  635,  14  L.  ed.  1090 754 

Dooley  v.  United  States,  182  U.  S.  222,  21  Sup.  Ct.  Eep.  762,  45  L.  ed. 

1074 '....'  756 

Dooley  v.  United  States,  183  U.  S.  151,  22  Sup.  Ct.  Eep.  62,  46  L.  ed.  128 

757 

Downes  v.  Bidwell,  182  U.  S.  244,  21  Sup.  Ct.  Eep.  770,  45  L.  ed.  1088.  . .  757 

Dugan,  In  re,  2  Low.  367,  Fed.  Cas.  No.  4120 669 

Dunlop  v.  Alexander,  1  Cranch  C.  C.  498,  3  Fed.  Cas.  No.  4166 662 

Elwine  Kreplin,  The,  4  Ben.  417,  Fed.  Cas.  No.  4427 739 

Ehvine  Kreplin,  The,  9  Blatchf .  438,  Fed.  Cas.  No.  4426 739 

Fairfax  v.  Hunter,  7  Cranch,  603,  3  L.  ed.  453 662,  663 

Fergus,  In  re,  30  Fed.  607 670 

Ferrelle,  In  re,  28  Fed.  878 670 

Fisher  v.  Harnden,  1  Paine  C.  C.  55,  Fed.  Cas.  No.  4819 662,  663 

Fitzsiramons  v.  Newport  Ins.  Co.,  4  Cranch,  185,  2  L.  ed.  591 663 

Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  13  Sup.  Ct.  Eep.  1016,  37 

L.  ed.  905 632,  633 

Forsyth  v.  Eeynolds,  15  How.  358,  14  L.  ed.  729 663 

Foster  v.  Neilson,  2  Pet.  253,  7  L.  ed.  415 650,  653,  754 

Fowler,  In  re,  4  Fed.  303,  18  Blatchf.  430 670 

Frank,  In  re,  107  Fed.  272 676 

Frelinghuysen  v.  Key,  110  U.  S.  63,  3  Sup.  Ct.  Eep.  462,  28  L.  ed.  71 711 

Friedman  v.  Goodwin,  1  McAll.  142,  Fed.  Cas.  No.  5,119 709 

Garcia  v.  Lee,  12  Pet.  511,  9  L.  ed.  1176 650,  653,  754 

Georgia  v.  Brailsf ord,  3  Dall.  1,  1  L.  ed.  483 662 

Goetze  v.  United  States,  103  Fed.  72 757 

Goetze  v.  United  States,  182  U.  S.  221,  21  Sup.  Ct.  Eep.  742,  45  L.  ed. 

1065 757 

Gordon's  Lessee  v.  Kerr,  1  Wash.  C.  C.  322,  Fed.  Cas.  No.  5611 662 

Gray  v.  United  States,  21  Ct.  of  Cl.  340 650,  652,  653,  663,  75  i 

Grin,  In  re,  112  Fed.  790 744 

Hall  v.  Patterson,  45  Fed.  352 670 

Harcourt  v.  Gaillard,  12  Wheat.  523,  6  L.  ed.  716 662 

Harden  v.  Fisher,  1  Wheat.  300,  4  L.  ed.  96 663 

Henderson  v.  Poindexter's  Lessee,  12  Wheat.  530,  6  L.  ed.  718 753 

Henrich,  In  re,  5  Blatchf.  414,  Fed.  Cas.  No.  6369 740 

Herres,  In  re,  33  Fed.   165 670 


Ixvi  TABLE  OF  CASES  CITED  IN  APPENDICES. 

PAGE 

Hibbes,  Ex  parte,  26  Fed.  421 670 

Higgins  v.  Mein,  4  Cranch,  415,  2  L.  ed.  664 662 

Ho  King,  In  re,  8  Saw.  438,  14  Fed.  724 633 

Hooker  v.  Los  Angeles,  188  U.  S.  314,  23  Sup.  Ct.  Eep.  395,  47  L.  ed.  487 

710 

Hooper  v.  United  States,  22  Ct.  of  Cl.  408 652 

Hopkirk  v.  Bell,  4  Cranch,  164,  2  L.  ed.  583 662 

Hopkirk  v.  Bell,  3  Cranch,  454,  2  L.  ed.  497 662 

Howell  v.  Bidwell,  124  Fed.  688 757 

Hughes  v.  Edwards,  9  Wheat.  489,  6  L.  ed.  142 663 

Hunter  v.  Fairfax,  3  Dall.  305,  1  L.  ed.  613 662 

Huus  v.  New  York  and  Porto  Eico  S.  S.  Co.  182  U.  S.  392,  21  Sup.  Ct. 

Eep.  827,  45  L.  ed.  1146 757 

Hylton's  Lessee  v.  Brown,  1  Wash.  C.  C.  298,  Fed.  Gas.  No.  6,981 662 

Iowa  v.  Eood,  187  U.  S.  87,  23  Sup.  Ct.  Eep.  49,  47  L.  ed.  86. 650,  653, 

Jackson  v.  Clarke,  3  Wheat.  1,  4  L.  ed.  319 663 

Jackson  v.  Porter,  1  Paine  C.  C.  457,  Fed.  Cas.  No.  7143 663 

Japanese  Immigrant  Case,  The,  189  U.  S.  86,  23  Sup.  Ct.  Eep.  611,  47  L. 

ed.    721 701 

Jones  v.  Walker,  2  Paine  C.  C.  688,  Fed.  Cas.  No.  7,507 062 

Josephs  v.  United  States,  1  Ct.  of  Cl.  197,  2  Ct.  of  Cl.  586 650,  653, 

Judson  v.  Corcoran,  17  How.  612,  15  L.  ed.  231 709 

Kaine,  In  re,  3  Blatchf.  1,  Fed.  Cas.  No.  7,597 669 

Kaine,  In  re,  14  How.  103,  14  L.  ed.  345 669 

Keene  v.  Whitaker,  14  Pet.  170,  10  L.  ed.  404 650,  653 

Kelley,  In  re,  2  Low,  339,  Fed.  Cas.  No.  7,655 669 

Kelley,  In  re,  25  Fed.  268 670 

Kelly,  In  re,  26  Fed.  852 670 

Ker,  Ex  parte,  18  Fed.  167 736 

Ker  v.  Illinois,  119  U.  S.  436,  7  Sup.  Ct.  Eep.  225,  30  L.  ed.  421 736 

Kinkead  v.  United  States,  18  Ct.  of  Cl.  504 743 

Kinkead  v.  United  States,  24  Ct.  of  Cl.  459 743 

Kinkead  v.  United  States,  150  U.  S.  483,  14  Sup.  Ct.  Eep.  172,  37  L.  ed. 

1152 743 

Krozanker,  In  re,  44  Fed.  482 740 

Lacroix  v.  Sarrazin,  4  Woods,  174,  15  Fed.  489 657 

Lane,  Ex  parte,  6  Fed.  34 670 

La  Eepublique  Francaise  v.  Schultz,  57  Fed.  37 657 

Lau  Ow  Bew,  Ex  parte,  141  U.  S.  583,  12  Sup.  Ct.  Eep.  43,  35  L.  ed.  868 

632,  633 

Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  12  Sup.  Ct.  Eep.  517,  36  L. 

ed.  340 632,  633 


TABLE  OF  CASES  CITED  IN  APPENDICES.  Ixvii 

PAGE 

Lee  Gon  Yung,  In  re,  111,  Fed.  998 634 

Leong  Tick  Dew,  In  re,    10  Saw.  38,  19  Fed.  490 633 

Le  Tiqre,  In  re,  3  Wash.  C.  C.  567,  Fed.  Gas.  No.  8281 753 

MacDonnell,  In  re,  11  Blatchf.  79,  Fed:  Cas.  No.  8,771 669 

Martin  v.  Hunter  'a  Lessee,  1  Wheat.  304,  4  L.  ed.  97 662 

McCabe,  Ex  parte,  46  Fed.  363,  12  L.  E.  A.  589 710 

McDonogh  v.  Millandon,  3  How.  693,  11  L.  ed.  787 650,  653 

Mellvaine  v.  Coxe  'a  Lessee,  4  Cranch,  209,  2  L.  ed.  598 662 

McKay  v.  Campbell,  2  Saw.  118,  Fed.  Cas.  No.  8,840 663,  670 

McKinney  v.  Saviego,  18  How.  235,  15  L.  ed.  365 709 

McPhun,  In  re,  30  Fed.  57 670 

Meade  v.  United  States,  2  Ct.  of  Cl.  224 754 

Meade  v.  United  States,  9  Wall.  691,  19  L.  ed.  687 754 

Miller,  In  re,  23  Fed.  32 670 

Mineau,  In  re,  45  Fed.  188 670 

Mitchel  v.  United  States,  9  Pet.  711,  9  L.  ed.  283 754 

Moncan,  In  re,  8  Saw.  350,  14  Fed.  44 633 

Nereide,  The,  9  Cranch,  388,  3  L.  ed.  769 753 

Nethercleft  v.  Robertson,  23  Blatchf.  548,  27  Fed.  737 691 

Newman,  Ex  parte,  14  Wall.  152,  20  L.  ed.  877 739 

Newman,  In  re,  79  Fed.  622 670 

New  Orleans  v.  De  Armas,  9  Pet.  224,  9  L.  ed.  109.  .• 650 

New  Orleans  v.  United  States,  10  Pet.  662,  9  L.  ed.  573 650,  653 

North  German  Lloyd  S.  S.  Co.  v.  Hedden,  43  Fed.  17 739 

Nuestra  Senora  de  La  Caridad,  The,  4  Wheat.  497,  4  L.  ed.  624 753 

O  'Kara  v.  United  States,  15  Pet.  275,  10  L.  ed.  737 754 

Oldfield  v.  Marriott,  10  How.  146,  13  L.  ed.  364 737 

One  Hundred  etc.  Feet  of  Pine  Lumber,  4  Blatchf.  182,  Fed.  Cas.  No. 

10,523 671 

Oritz,  Ex  parte,  100  Fed.  955 756 

Ornelas  v.  Ruiz,  161  U.  S.  502,  16  Sup.  Ct.  Rep.  689,  40  L.  ed.  787 710 

Orpen,  In  re,  86  Fed.  760 670 

Orr  v.  Hodgson,  4  Wheat.  453,  4  L.  ed.  613 662,  663 

Orteiza  y  Cortes  v.  Jacobis,  136  U.  S.  330,  10  Sup.  Ct.  Rep.  1034,  34  L. 

ed.  464 756 

Owings  v.  Norwood  Js  Lessee,  5  Cranch,  344,  3  L.  ed.  120 662 

Parrott,  In  re,  6  Saw.  349,  1  Fed.  481 632 

Pepke  v.  United  States,  183  U.  S.  176,  22  Sup.  Ct.  Rep.  59,  46  L.  ed.  138 

757 

Pezarro,  The,  2  Wheat.  227,  4  L.  ed.  226 753 

Pollard  v.  Files,  2  How.  591,  11  L.  ed.  391 754 


Ixviii  TABLE  OF  CASES  CITED  IN  APPENDICES. 

PAGE 

Pollard  v.  Hagan,  3  How.  212,  11  L.  ed.  565 650,  653  753,  754 

Pollard  v.  Kibbe,  14  Pet.  353,  10  L.  ed.  490 754 

Pong  Ah  Ghee,  In  re,  18  Fed.  527 633 

Powers  v.  Comly,  101  U.  S.  789,  25  L.  ed.  805 733 

Prevost  v.  Grenaux,  19  How.  1,  15  L.  ed.  572 656 

Quong  Woo,  In  re,  7  Saw.  526,  13  Fed.  229 633 

Eeintz,  In  re,  39  Fed.  204,  4  L.  E.  A.  236 670 

Eepublica  v.  Gordon,  1  Dall.  233,  1  L.  ed.  155 662 

Eice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  Eep.  406,  45  L.  ed.  577 676 

Eichter  "v.  Eeynolds,  59  Fed.  577,  8  C.  C.  A.  220 660 

Eisch,   In  re,   36   Fed.   546 740 

Eobinson  v.  Minor,  10  How.  627,  13  L.  ed.  568 753 

Eodreguez,  In  re,  81  Fed.  337 710,  711 

Eoss,  Ex  parte,  2  Bond.  252,  Fed.  Gas.  No.  12,069 669 

Eoss  v.  Mclntyre,  140  U.  S.  453,  11  Sup.  Ct.  Eep.  897,  35  L.  ed.  581 698 

Eowe,  In  re,  77  Fed.  161,  23  C.  C.  A.  103 710 

Salomon!,  In  re,  29  Fed.  534 696 

Santissima  Trinidad,  The,  1  Brock.  478,  Fed.  Gas.  No.  2,568 753 

Santissima  Trinidad,  The,  7  Wheat,  283,  5  L.  ed.  454 753 

Schooner,  Jane  The,  23  Ct.  of  Cl.  226 652 

Seabury  v.  Field,  1  McAll.  1,  Fed.  Gas.  No.  12,574 709 

Sena  v.  United  States,  189  U.  S.  233,  23  Sup.  Gt.  Eep.  596,  47  L.  ed. 

787  710 

Shanks  v.  Dupont,  3  Pet.  242,  7  L.  ed.  666 662,  663 

Sheazle,  In  re,  1  Wood.  &  M.  66,  Fed.  Gas.  No.  12,734 669 

Ship  Tom,  The,  29  Ct.  of  Cl.  68 650,  652,  653 

Shong  Toon,  In  re,  10  Saw.  268,  21  Fed.  386 633 

Slidell  v.  Grandjean,  111  U.  S.  412,  4  Sup.  Ct.  Eep.  475,  28  L.  ed. 

321  650,  653 

Smith  v.  Maryland,  6  Cranch,  286,  3  L.  ed.  225 662 

Smith  v.  United  States,  10  Pet.  326,  9  L.  ed.  442 ..650,  653,  754 

Society  for  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheat.  464, 

5  L.  ed.  662 662,  663 

Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gallison,  105, 

Fed.  Gas.  No.  13,156  663 

Soulard  v.  United  States,  4  Pet.  511,  7  L.  ed.  938 650,  653 

Sternaman,  In  re,  77  Fed.  595 670 

Sternaman  v.  Peck,  83  Fed.  690,  28  C.  C.  A.  377 670 

Sternaman  v.  Peck,  80  Fed.  883,  26  C.  C.  A.  214 670 

Storti  v.  Massachusetts,  183  U.  S.  138,  22  Sup.  Ct.  Eep.  72,  46  L.  ed. 

120     ,  .    695 


TABLE  OF  CASES  CITED  IN  APPENDICES.  Ixix 

PAGE 

Strother  v.  Lucas,  12  Pet.  410,  9  L.  ed.  1137 650,  653 

Stupp,  In  re,  11  Blatchf.  124,  Fed.  Gas.  No.  13,562 740 

Stupp,  In  re,  12  Blatchf.  501,  Fed.  Gas.  No.  13,563 620 

Taylor,    In    re,    118    Fed.    196 676 

Terlinden  v.  Ames,  184  U.  S.  270,  22  Sup.  Ct.  Rep.  484,  46  L.  ed.  534.  .  740 
The  British  Prisoners  (In  re  Sheazle),  1  Wood.  &  M.  66,  Fed.  Gas.  No. 

12,734     669 

Thingvalla  Line  v.  United  States,  24  Ct.  of  Cl.  255 643 

Thomas,  In  re,  12  Blatchf.  370,  Fed.  Gas.  No.  13,887 616 

Tobin  v.  Walkenshaw,  1  McAll.  186,  Fed.  Gas.  No.  14,070 709 

Town  v.  De  Haven,  5  Saw.  146,  Fed.  Gas.  No.  14,113 670 

Townsend  v.  Greeley,  5  Wall.  326,  18  L.  ed.  547   709 

Tripp  v.  Spring,  5  Saw.  209,  Fed.  Gas.  No.  14,180 709 

Tucker  v.  Alexandroff,  183  U.  S.  424,  22  Sup.  Ct.  Rep.  195,  46  L.  ed.  264  744 

Tully,  In  re,  20  Fed.  812 670 

Tung  Yeong,  In  re,  9  Saw.  620,  19  Fed.  184 633 

United  States  v.  Acosta,  1  How.  24,  11  L.  ed.  33  754 

United  States  v.  Ah  Fawn,  57  Fed.  591 633 

United  States  v.  Anguisola,  1  Wall.  352,  17  L.  ed.  613 709 

United  States  v.  Arredondo,  6  Pet.  691,  8  L.  ed.  547  754 

United  States  v.  Elaine,  139  U.  S.  306,  11  Sup.  Ct.  Rep.  607,  35  L.  ed. 

183  711 

United  States  v.  Breward,  16  Pet.  143,  10  L.  ed.  916 754 

United  States  v.  Caldwell,  8  Blatchf.  131,  Fed.  Gas.  No.  14,707 669 

United  States  v.  Clarke,  9  Pet.  168,  9  L.  ed.  89 754 

United  States  v.  Clarke,  16  Pet.  228,  10  L.  ed.  946 754 

United  States  v.  Clarke,  8  Pet.  436,  8  L.  ed,  1001 754 

United  States  v.  D'Auterive,  10  How.  609,  13  L.  ed.  560 650,  653 

United  States  v.  Delespine,  15  Pet.  319,  10  L.  ed.  753 754 

United  States  v.  Diekelman,  92  U.  S.  520,  23  L.  ed.  742 739 

United  States  v.  Douglas,  17  Fed.  634 632,  633 

United  States  v.  Frelinghuysen,  2  Mackey  (D.  C.),  299 711 

United  States  v.  Hanson,  16-  Pet.  196,  10  L.  ed.  935 754 

United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  8  Sup.  Ct.  Rep.  663,  31 

L.  ed.  591 * ......  633 

United  States  v.  King,  3  How.  773,  11  L.  ed.  824 /650,  653 

United  States  v.  Kingsley,  12  Pet.  476,  9  L.  ed.  1163 754 

United  States  v.  Lawrence,  13  Blatchf.  295,  Fed.  Gas.  No.  15,573 669 

United  States  v.  Lee  Yen  Tai,  113  Fed.  465,  51  C.  C.  A.  299 634 

United  States  v.  Lynde's  Heirs,  11  Wall.  632,  20  L.  ed.  230 650,  653,  754 

United  States  v.  Mill 's  Heirs,  12  Pet.  215,  9  L.  ed.  1061 754 

United  States  v.  Miranda,  16  Pet.  153,  10  L.  ed.  920 751 

United  States  v.  Moreno,  1  Wall.  400,  17  L.  ed.  633 7(W 


Ixx  TABLE  OF  CASES  CITED  IN  APPENDICES. 

PAGE 

United  States  v.  Percheman,  7  Pet.  51,  8  L.  ed.  604 754 

United  States  v.  Philadelphia  and  New  Orleans,  11  How.  609,  13  L.  ed. 

834 650,653 

United  States  v.  Eauscher,  119  U.  S.  407,  7  Sup.  Ct.  Eep.  234,  30  L.  ed. 

425  669 

United  States  v.  Eepentigny,  5  Wall.  211,  18  L.  ed.  627 662 

United  States  v.  Eeynes,  9  How.  127,  13  L.  ed.  74. 650,  653 

United  States  v.  Sibbald,  10  Pet.  313,  9  L.  ed.  437 754 

United  States  v.  Texas,  162  U.  S.  1,  16  Sup.  Ct.  Eep.  725,  40  L.  ed.  867,.  754 

United  States  v.  The  Amistead,  15  Pet.  518,  10  L.  ed.  826 753,  754 

United  States  v.  The  Peggy,  1  Cranch,  103,  2  L.  ed.  49 652 

United  States  v.  Trumbull,  48  Fed.  94  627 

United  States  v.  Turner,  11  How.  663,  13  L.  ed.  857 650,  653 

United  States  v.  Wash,  Bee's  Adm.  Eep.  267 663 

United  States  v.  Watts,  8  Saw.  370,  14  Fed.  130  670 

United  States  v.  Wiggins,  14  Pet.  334,  10  L.  ed.  481  754 

United  States  v.  Yong  Yew,  83  Fed.  832  633 

United  States  v.  Yorba,  1  Wall.  412,  17  L.  ed.  630 709 

Van  Aernam,  Ex  parte,  3  Blatchf.  160,  Fed.  Cas.  No.  16,824 66:) 

Vandervelpen,  In  re,  14  Blatchf.  137,  Fed.  Cas.  No.  16,844 620 

Van  Hoven,  Ex  parte,  4  Dill.  411,  Fed.  Cas.  No.  16,858 620 

Wadge,  In  re,  15  Fed.  864,  16  Fed.  332,  21  Blatchf.  300 670 

Wan  Shing  v.  United  States,  140  U.  S.  424,  11  Sup.  Ct.  Eep.  729,  35  L. 

ed.  503 633 

Ware  v.  Hylton,  3  Ball.  199,  1  L.  ed.  568 662 

Weiberg  v.  The  St.  Oloff,  2  Pet.  Adm.  428,  Fed.  Cas.  No.  17,357 763 

Weld  &  Co.  v.  United  States,  23  Ct.  of  Cl.  126 675 

Wiegand,  In  re,  14  Blatchf.  370,  Fed.  Cas.  No.  17,618  740 

Wildenhus,  In  re,  28  Fed.  924 619 

Wong  Yung  Quy,  In  re,  6  Saw.  237,  47  Fed.  717 632 

Wright,  In  re,  123  Fed.  463 676 

Wright  v.  Henkel,  190  U.  S.  45,  23  Sup.  Ct.  Eep.  781,  47  L.  ed.  948.  .670,  676 

Yick  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  Eep.  1064,  30  L.  ed.  220.   633 


TREATY  POWER  OF  THE  CONSTITUTION. 


CHAPTER    I. 

TREATY  CLAUSES  OF  THE  CONSTITUTION. 

§     1.  Treaty  clauses  of  the  Constitution. 

§     2.  Definitions. 

§     3.  The  continental  Congress. 

§     4.  Committee  to  prepare  plan  of  treaties. 

§     5.  Declaration  of  Independence. 

S     6.  Treaties  under  Articles  of  Confederation. 

§     7.  Weakness  of  the  confederation. 

§     8.  Treaties  under  continental  Congress. 

§     9.  Congress  unable  to  guarantee  observance  of  treaty  obligations. 

§  10.  Eefusal  of  states  to  observe  treaties. 

§  11.  Want  of  judicial  power  to  enforce  treaties. 

§  12.  Treaty  of  peace  with  Great  Britain. 

§  13.  Same  subject. 

§  14.  Breaches  of  this  treaty. 

§  15.  Constitution  removed  this  defect. 

§  16.  Comments  of  James  Madison. 

§  17.  Comments  of  Samuel  Adams. 

§  18.  Formation  of  Constitution. 

§  19.  Organization  of  constitutional  convention. 

§  20.  Address  to  Congress. 

§  21.  Comments  of  John  Jay. 

§  1.     Treaty  clauses  of  the  Constitution. — The  treaty  clauses  of 
the  Constitution  of  the  United  States  are : 

1.  States  prohibited  from  making  treaties: 

(a)  "No  State  shall  enter  into  any  Treaty,  Alliance,  or  Con- 
federation; grant  letters  of  Marque  and  Reprisal;  coin  Money; 
emit  Bills  of  Credit;  make  any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  .of  Debts;  pass  any  Bill  of  Attainder,  ex 
post  facto  Law,  or  Law  impairing  the  Obligation  of  Contracts, 
or  grant  any  Title  of  Nobility."* 

a  Article  I,  section  10,  clause  1. 

Treaties— 1  (1) 


§    1]  TREATY    CLAUSES    OF    THE    CONSTITUTION.  2 

(6)  "No  State  shaU,  without  the  Consent  of  Congress,  lay 
any  Duty  of  Tonnage,  Keep  Tro-ops,  or  Ships  of  War  in  Time 
of  Peace,  enter  into  any  Agreement  or  Compact  with  another 
State,  or  with  a  Foreign  Power,  or  engage  in  War,  unless 
actually  invaded,  or  in  such  imminent  Danger  as  will  not  admit 
of  delay."* 

2.  Power  to  make  treaties : 

11  He  [the  President]  shall  have  Power,  by  and  with  the 
Advice  and  Consent  -of  the  Senate,  to  make  Treaties,  provided 
two-thirds  of  the  Senators  present  concur;  and  he  shall  nom- 
inate, and  by  and  with  the  Advice  and  Consent  of  the  Senate, 
shall  appoint  Ambassadors,  other  public  Ministers  and  Consuls, 
Judges  of  the  Supreme  Court,  and  all  other  Officers  of  the 
United  States,  whose  Appointments  are  not  herein  otherwise 
provided  for,  and  whicfy  shall  be  established  by  law;  but  the 
Congress  may  by  Law  vest  the  Appointment  of  such  inferior 
Officers,  as  they  think  proper,  in  the  President  alone,  in  the 
Courts  of  Law,  or  in  the  Heads  of  Departments. "c 

3.  The  judicial  power  extends  to  treaties: 

"The  Judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United 
-  States,  and  Treaties  made,  or  which  shall  be  made,  under  their 
Authority; — to  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls; — to  all  cases  of  admiralty  and  mari- 
time Jurisdiction; — to  Controversies  to  which  the  United  States 
shall  be  a  Party; — to  Controversies  between  two  or  more  States; 
— between  a  State  and  Citizens  of  another  State; — between 
Citizens  of  different  States; — between  Citizens  of  the  same 
State  claiming  Lands  under  Grants  of  different  States,  and 
between  a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Subjects."* 

4.  Treaties  the  supreme  law  of  the  land : 

((This  Constitution,  and  the  Laws  of  the  United  States,  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  -or 

b  Article  I,  section  10,  clause  3.  d  Article  III,  section  2,  clause  2. 

c  Article  II,  section  2,  clause  2. 


3  DEFINITIONS.  [§    2 

which  shall  be  made,  under  the  Authority  of  the  United  States, 
shall  l)e  the  supreme  Law  of  the  Land;  and  the  Judges  in 
every  State  shall  be  bound  thereby,  any  Thing  in  the  Con- 
stitution or  Laws  of  any  State  to  the  Contrary  notwithstand- 
ing." e 

§  2.  Definitions. — Among  the  various  definitions  given  of 
treaties  we  select  the  following: 

"A  treaty  as  understood  in  the  law  of  nations  ....  is  an 
agreement  or  contract  between  two  or  more  nations  or  sovereigns, 
entered  into  by  agents  appointed  for  that  purpose,  and  duly  sanc- 
tioned by  the  supreme  power  of  the  respective  parties. ' ' 1 

* '  When  we  speak  of  '  a  treaty, '  we  mean  an  instrument  written 
and  executed  with  formalities  customary  among  nations. ' ' 2 

4 'No  nation  treats  with  a  citizen  of  another  nation  except 
through  his  government.  The  treaty,  when  made,  represents  a 
compact  between  the  governments,  and  each  government  holds 
the  other  responsible  for  everything  done  by  their  respective  citi- 
zens under  it. "  3 

''What  is  a  treaty?  The  answer  is,  it  is  a  compact  formed  be- 
tween two  nations  or  communities,  having  the  right  of  self-gov- 
ernment. ' ' 4 

"Laws  are  always  seen,  and  through  that  medium  people  know 
what  they  have  to  do.  Treaties  are  not  always  seen.  Some  arti- 
cles (being  what  are  called  secret  articles)  the  public  never  see."  5 

"I  consider  a  treaty  ....  as  a  solemn  promise  by  the  whole 
nation,  that  such  and  such  things  shall  be  done,  or  that  such  and 
such  rights  shall  be  enjoyed."6 

"A  treaty  is  in  its  nature  a  contract  between  two  or  more 
nations,  and  is  so  considered  by  writers  on  public  law ;  and  by  the 
Constitution  it  is  placed  on  the  same  footing  and  made  of  like 

e  Article  VI,  clause  2.  *  McLean,  J.,  Worcester  v.  Georgia, 

1  Thompson,  J.,  dissenting.     Chero-       6  Pet.  581,  8  L.  eel.  483. 

kee  Nation  v.  Georgia,  5  Pet.  60,  8  3  Iredell,    J.,    Ware    v.    Hylton,    3 

L.  eel.  25.  Ball.  272,  1  L.  ed.  568. 

2  Taney,  C.  J.,  Holmes  v.  Jennison,          6  Iredell,    J.,    Ware    v.    Hylton,    3 
14  Pet.  571,  10  L.  ed.  579.  Dall.  271,  1  L.   ed.  568. 

3  Waite,    C.    J.,    Frelinghuysen    v. 
Key,  110  U.  S.  71,  3  Sup.  Ct.  Eep. 
462,  28  L.  ed.  71. 


§    3]  TREATY    CLAUSES    OF    THE    CONSTITUTION.  4 

obligation  as  a  law  of  the  United  States.  Both  are  declared  in 
that  instrument  to  be  the  supreme  law  of  the  land,  and  no  para- 
mount authority  is  given  to  either  over  the  other."7 

"  Under  the  Constitution,  a  treaty  between  the  United  States 
and  a  foreign  nation  is  to  be  considered  in  two  aspects — as  a 
compact  between  the  two  nations,  and  as  a  law  of  our  country. 
As  a  compact,  it  depends  for  its  enforcement  on  the  good  faith 
of  the  contracting  parties,  and  to  carry  into  effect  some  of  its 
provisions  may  require  legislation.  For  any  infraction  of  its 
stipulations  importing  a  contract,  the  courts  can  afford  no  redress 
except  as  provided  by  such  legislation.  The  matter  is  one  to  be 
settled  by  negotiation  between  the  executive  departments  of  the 
two  governments,  each  government  being  at  liberty  to  take  such 
measures  for  redress  as  it  may  deem  advisable."8 

"A  treaty  of  cession  is  a  deed  of  the  ceded  territory,  the 
sovereign  is  the  grantor,  the  act  is  his,  so  far  as  it  relates  to  the 
cession,  the  treaty  is  his  act  and  deed,  and  all  courts  must  so 
consider  it,  and  deeds  are  construed  in  equity  by  the  rules  of 
law."9 

§  3.  The  continental  Congress. — As  it  became  evident  that  if 
the  colonies  were  to  be  successful  in  their  contentions  against 
Great  Britain  harmonious  co-operation  was  necessary,  the  various 
colonies,  acting  upon  the  recommendation  of  Massachusetts  that 
a  continental  Congress  be  called  to  consider  the  state  of  public 
affairs,  appointed  delegates,  who  assembled  at  Philadelphia  on 
September  4,  1774.  They  determined  that  each  colony  or  prov- 
ince should  have  one  vote,  adopted  addresses  to  the  people  of 
England  and  to  the  adjoining  British  colonies,  passed  resolu- 
tions declaring  that  the  importation  of  certain  goods  ought  to 
cease  after  September  10,  1775,  unless  before  that  time  the 
grievances  of  America  should  be  removed,  and  proposed  that  a 
general  Congress  be  held  in  May  of  the  following  year. 

At  the  second  Congress  all  the  states  were  represented.  The 
raising  of  continental  troops  was  authorized,  and  George  Wash- 
ington was  appointed  commander-in-chief.  They  provided  for 

7  Field,  J.,  dissenting.    Chew  Heong      Franks,  120  U.  S.  702,  7  Sup.  Ct.  Eep. 
v.   United  States,   112   U.   S.   562,   5      656,  30  L.  ed.  766. 

Sup.  Ct.  Rep.  255,  28  L.  ed.  770.  9  Baldwin,     J.      United     States    v. 

8  Field,  J.,  dissenting.     Baldwin  v.       Arredondo,  6  Pet.  738,  8  L.  ed.  547. 


5  COMMITTEE  TO  PREPARE  PLAN  OF  TREATIES.  [§§    4,  5 

the  issue  of  two  millions  of  dollars  in  bills  of  credit,  and  pledged 
the  colonies  to  redeem  them,  and  on  June  10th  of  that  year  a 
committee  was  constituted  to  prepare  a  declaration  to  the  effect 
"that  these  united  colonies  are,  and  of  right  ought  to  be,  free 
and  independent  states ;  that  they  are  absolved  from  all  allegiance 
to  the  British  crown,  and  that  all  political  connection  between 
them  and  the  State  of  Great  Britain  is,  and  ought  to  be  dis- 
solved."10 

§  4.  Committee  to  prepare  plan  of  treaties. — A  committee  was 
appointed  on  the  following  day,  June  llth,  to  prepare  a  plan 
of~treaties  to  be  proposed  to  foreign  powers.  On  the  4th  of 
July  the  Declaration  of  Independence  was  adopted.  The  pow- 
ers of  a  government  were  exercised  by  Congress  until  the  adop- 
tion of  the  Articles  of  Confederation.  A  resolution  was  passed 
by  Congress  on  June  11,  1776,  providing  for  the  appointment  of 
a  committee  to  prepare  and  digest  the  form  of  a  confederation 
to  be  entered  into  between  the  colonies.  This  committee  on  July 
12,  1776,  presented  a  draft  which  was  under  debate  for  several 
days,  and  on  August  20,  1776,  the  committee  of  the  whole  re- 
ported a  new  draft.11 

On  November  15,  1777,  Congress  finally  adopted  the  articles, 
and  the  final  ratification  by  all  the  states  occurred  March  1, 
1781.12 

§  5.  Declaration  of  Independence. — The  Declaration  of  In- 
dependence on  July  4,  1776,  effected  a  severance  of  the  politi- 
cal connection  between  the  colonies  and  the  English  crown  and 
constituted  the  colonies  free  and  independent  states.  "The  con- 
sequences flowing  from  its  adoption  were,"  says  Mr.  Curtis, 
"that  the  local  allegiance  of  the  inhabitants  of  each  colony  be- 
came transferred  and  due  to  the  colony  itself,  or  as  it  was  ex- 
pressed by  the  Congress,  became  due  to  the  laws  of  the  colony 
from  which  they  derived  protection ;  that  the  people  of  the  coun- 
try became  thenceforth  the  rightful  sovereign  of  the  country; 
that  they  became  united  in  a  national  capacity,  as  one  people; 
that  they  could  thereafter  enter  into  treaties  and  contract  al- 

10  Journals    of    Congress    of    1776,  12  Secret    Journals,    401,    418,    423, 
205,  206.                                                ,            426;     3    Kent's    Commentaries,    196, 

11  Journals  of  1776,  304.  197. 


§    6]  TREATY    CLAUSES    OF    THE    CONSTITUTION.  6 

liances  with  foreign  nations,  could  levy  war  and  conclude  peace, 
and  do  all  other  acts  pertaining  to  the  exercise  of  a  national 
sovereignty;  and  finally,  that  in  their  national  capacity,  they 
became  known  and  designated  as  the  United  States  of  Amer- 
ica. This  Declaration  was  the  first  national  state  paper  in  which 
these  words  were  used  as  the  style  and  title  of  the  nation. ' ' 13 

"A  nation  and  a  state  did  not  spring  into  existence,  through 
that  declaration,  as  dramatic  publicists  are  wont  to  express  it. 
Nations  and  states  do  not  spring  into  existence.  The  signifi- 
cance of  the  proclamation  was  this:  a  people  testified  thereby 
the  consciousness  of  the  fact  that  they  had  become,  in  the 
progressive  development  of  history,  one  whole,  separate,  and 
adult  nation,  and  a  national  state,  and  that  they  were  deter- 
mined to  defend  this  natural  status  against  the  now  no  longer 
natural  supremacy  of  the  foreign  state."14 

§  6.  Treaties  under  Articles  of  Confederation.— It  was  declared 
in  the  first  article  that  the  name  of  the  confederacy  should  be 
"The  United  States  of  America,"  and  in  the  second  that  each 
state  should  retain  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  was  not  ex- 
pressly delegated  by  the  confederation  to  the  United  States. 
The  sole  and  exclusive  right  was  conferred  upon  Congress  of 
sending  and  receiving  ambassadors,  and  of  entering  into  treaties 
amTalliances  under  the  restriction  that  no  treaty  of  commerce 
could  be  made  by  which  the  legislative  power  of  the  states  was 
to  be  restrained  from  imposing  such  imposts  and  duties  on 
foreigners  as  their  own  people  were  subjected  to,  or  prohibiting 
the  exportation  or  importation  of  any  species  of  goods  or  com- 
modities. No  state  was  allowed,  without  the  consent  of  the 
United  States,  to  send  an  embassy  to,  or  receive  an  embassy 
from,  or  make  any  treaty  with  any  ruler  or  state;  nor  with- 
out the  consent  of  Congress  could  any  state  enter  into  any 
treaty,  confederation  or  alliance  with  each  other.  But  the  Arti- 
cles of  Confederation  contained  no  means  to  carry  its  powers 
into  execution.  It  might  declare  everything,  but  do  nothing; 
or,  in  the  words  of  Washington,  the  confederation  was  "little 

13  1  Curtis'  Constitutional  History  14  1  Burgess'  Political  Science  and 
of  the  United  States,  35.  Constitutional  Law,  100. 


TREATIES   UNDER  ARTICLES   OF  CONFEDERATION. 


:§ 


more  than   a  shadow  without  the   substance;   and  Congress   a 
nugatory  body,  their  ordinances  being  little  attended  to."15 


15  5  Marshall 's  Life  of  Washington, 
64. 

The  clauses  of  the  Articles  of  Con- 
federation relating  to  these  subjects 
were: 

"Article  VI.  No  State  without 
the  consent  of  the  United  States  in 
Congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference, 
agreement,  alliance,  or  treaty  with  any 
king,  prince  or  state;  nor  shall  any 
person  holding  any  office  or  profit  or 
trust  under  the  United  States,  or  any 
of  them,  accept  of  any  present, 
emolument,  office  or  title  of  any  kind 
whatever  from  any  king,  prince  or 
foreign  state;  nor  shall  the  United 
States  in  Congress  assembled,  or  any 
of  them,  grant  any  title  of  nobility. 

"No  two  or  more  States  shall  enter 
into  any  treaty,  confederation  or  al- 
liance whatever  between  them,  without 
the  consent  of  the  United  States  in 
Congress  assembled,  specifying  ac- 
curately the  purposes  for  which  the 
same  is  to  be  entered  into,  and  how 
long  it  shall  continue. 

"No  State  shall  lay  any  imposts 
or  duties,  which  may  interfere  with 
any  stipulations  in  treaties,  entered 
into  by  the  United  States  in  Con- 
gress assembled,  with  any  king,  prince 
or  state,  in  pursuance  of  any  treaties 
already  proposed  by  Congress,  to  the 
courts  of  France  and  Spain. 

"No  vessels  of  war  shall  be  kept 
up  in  time  of  peace  by  any  State, 
except  such  number  only,  as  shall 
be  deemed  necessary  by  the  United 
States  in  Congress  assembled,  for  the 
defense  of  such  State,  or  its  trade; 
nor  shall  any  body  of  forces  be  kept 
up  by  any  State,  in  time  of  peace,  ex- 


cept such  number  only,  as  in  the 
judgment  of  the  United  States,  in 
Congress  assembled,  shall  be  deemed 
requisite  to  garrison  the  forts  neces- 
sary for  the  defence  of  such  State; 
but  every  State  shall  always  keep  up 
a  well  regulated  and  disciplined 
militia,  sufficiently  armed  and  ae- 
coutered,  and  shall  provide  and  con- 
stantly have  ready  for  use,  in  public 
stores,  a  due  number  of  field  pieces 
and  tents,  and  a  proper  quantity  of 
arms,  ammunition  and  camp  equipage. 

1 '  No  State  shall  engage  in  any  war 
without  the  consent  of  the  United 
States  in  Congress  assembled,  unless 
such  State  be  actually  invaded  by 
enemies,  or  shall  have  received  cer- 
tain advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to 
invade  such  State,  and  the  danger  is 
so  imminent  as  not  to  admit  of  a 
delay,  till  the  United  States  in  Con- 
gress assembled  can  be  consulted;  nor 
shall  any  State  grant  commissions  to 
any  ships  or  vessels  of  war,  nor 
letters  of  marque  or  reprisal,  except 
it  be  after  a  declaration  of  war  by  the 
United  States  in  Congress  assembled, 
and  then  only  against  the  kingdom  or 
state  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and 
upon  such  regulations  as  shall  be 
established  by  the  United  States  in 
Congress  assembled,  unless  such  State 
shall  be  infested  by  pirates,  in  which 
case  vessels  of  war  may  be  fitted  out 
for  that  occasion,  and  kept  so  long 
as  the  danger  shall  continue,  or  until 
the  United  States  in  Congress  as- 
sembled, shall  determine  otherwise." 

1 '  Article  IX.  The  United  States  in 
Congress  assembled,  shall  have  the  sole 
and  exclusive  right  and  power  of  de- 


§§    7,   8]  TREATY   CLAUSES  OF   THE   CONSTITUTION.  8 

§  7.  Weakness  of  the  confederation. — "The  government  of 
the  United  States  could  not  go  on  under  the  confederation," 
said  Mr.  Justice  Patterson,  "because  Congress  were  obliged  to 
proceed  in  the  line  of  requisition.  Congress  could  not  under  the 
old  confederation  raise  money  by  taxes,  be  the  public  exigencies 
ever  so  pressing  and  great.  They  had  no  coercive  authority— 
if  they  had,  it  must  have  been  exercised  against  the  delinquent 
states,  which  would  be  ineffectual,  or  terminate  in  a  separation. 
Requisitions  were  a  dead  letter,  unless  the  state  legislatures 
could  be  brought  into  action;  and  when  they  were,  the  sums 
raised  were  very  disproportional.  Unequal  contributions  or  pay- 
ments engendered  discontent,  and  fomented  state  jealousy."16 

As  each  state  pursued  its  own  course,  treaty  obligations  en- 
tered into  by  the  general  government  had  no  binding  force,  and 
in  many  of  the  states  laws  were  passed  which  rendered  nugatory 
the  stipulations  in  treaties  with  other  governments,  and  this 
evil  became  so  great  that  in  April,  1787,  Congress  was  compelled 
to  address  to  the  several  states  a  letter,  beseeching  them  to  re- 
peal such  of  their  laws  as  interfered  with  the  treaties  made  with 
foreign  nations.17 

We  shall  notice  the  breaches  of  the  treaty  of  peace  with  Great 
Britain  at  greater  length  in  a  subsequent  section. 

§  8.  Treaties  under  continental  Congress. — On  February  16. 
1776,  it  was  suggested  that  treaties  with  foreign  powers  should  be 

termining  on  peace  and  war,  except  in  what  manner  prizes  taken  by  land  or 
the  cases  mentioned  in  the  sixth  naval  forces  in  the  service  of  the 
article — of  sending  and  receiving  am-  United  States  shall  be  divided  or  ap- 
bassadors — entering  into  treaties  and  propriated — of  granting  letters  of 
alliances,  provided  that  no  treaty  of  marque  and  reprisal  in  time  of 
commerce  shall  be  made  whereby  the  peace — appointing  courts  for  the  trial 
legislative  power  of  the  respective  of  piracies  and  felonies  committed  on 
States  shall  be  restrained  from  im-  the  high  seas  and  establishing  courts 
posing  such  imposts  and  duties  on  for  receiving  and  determining  finally 
foreigners,  as  their  own  people  are  appeals  in  all  cases  of  captures,  pro- 
subjected  to,  or  from  prohibiting  the  vided  that  no  member  of  Congress 
exportation  or  importation  of  any  shall  be  appointed  a  judge  of  any  of 
species  of  goods  or  commodities  what-  said  courts.7' 

soever — of   establishing  rules   for  de-  18  Hylton  v.  United  States,  3  Dall. 

ciding  in  all  cases,  what  captures  on  172,  178,  1  L.  ed.  556. 

land  or  water  shall  be  legal,  and  in  17  1  Amer.  Museum,  352. 


9  TREATIES  UNDER   CONTINENTAL   CONGRESS.  [§    8 

made  to  open  our  ports  to  foreign  commerce,  but  to  this  proposition 
the  answer  was  returned  that  the  character  in  which  Congress 
should  act  should  first  be  determined — whether  as  the  representa- 
tives of  independent  states  or  as  dependencies  of  Great  Britain.  A 
committee  on  secret  correspondence  was  appointed  by  Congress  on 
the  29th  of  November,  1775.  It  was  the  duty  of  this  committee  to 
correspond  with  the  friends  of  the  colonies  wherever  they  might  be 
found  to  be  throughout  the  world.  Instructions  addressed  to  Silas 
Deane  were  signed  by  Dr.  Franklin,  Benjamin  Harrison,  John 
Dickinson,  Robert  Morris  and  John  Jay  on  the  third  day  of  March, 
1776,  directing  him  to  enter  into  communication  with  M.  de  Ver- 
gennes,  and  to  learn,  if  possible,  whether  France  would  enter  into 
any  treaty  or  alliance  with  them  for  commerce  or  defense,  or  both, 
should  the  colonies  form  themselves  into  independent  states.  On 
the  17th  of  September,  1775,  a  plan  of  treaty  was  adopted  to  be 
proposed  to  the  King  of  France.  The  commissioners  selected  by  the 
continental  Congress  to  conclude  treaties  with  the  nations  of  the 
world  were  Dr.  Franklin,  Silas  Deane  and  Arthur  Lee,  the  latter 
having  been  elected  in  the  place  of  Thomas  Jefferson,  who  declined. 
The  commissioners  on  January  6,  1778,  concluded  a  treaty  of  al- 
liance and  a  treaty  of  amity  and  commerce  with  the  King  of 
France,  and  following  this,  treaties  were  made  with  several  other 
powers,  the  treaty  of  peace  with  Great  Britain  being  made  in 
1783.18 

18  Notes,  Treaty  Volume  1776-  Georgia,  to  all  who  shall  see  these 
1887,  1219,  J.  C.  B.  Davis;  Ban-  presents;  send  greeting; — Whereas,  a 
croft 's  History  of  the  United  States,  trade,  upon  equal  terms,  between  the 
Vol.  IV,  p.  335;  Moore's  American  subjects  of  his  most  Christian 
Diplomacy,  33.  The  first  diplomatic  Majesty,  the  King  of  France,  and 
representatives  commissioned  to  rep-  the  people  of  these  States,  will  be 
resent  the  United  States  were  Ben-  beneficial  to  both  nations; — Know 
jamin  Franklin,  Silas  Deane  and  ye,  therefore,  that  we,  confiding  in 
Arthur  Lee.  Jefferson  was  appoint-  the  prudence  and  integrity  of  Ben- 
ed  first,  but  being  forced  to  decline,  jamin  Franklin,  one  of  the  Delegates 
Lee  was  appointed  in  his  stead.  in  Congress  from  the  State  of  Penn- 
Their  letters  of  credence  was:  "The  sylvania,  and  President  of  the  Con- 
Delegates  of  the  United  States  of  vention  of  said  State,  etc.,  Silas 
New  Hampshire,  Massachusetts  Bay,  Deane,  now  in  France,  late  a  Dele- 
Ehode  Island,  Connecticut,  New  gate  from  the  State  of  Connecticut, 
York,  New  Jersey,  Pennsylvania,  and  Arthur  Lee,  barrister  at  law, 
Delaware,  Maryland,  Virginia,  North  have  appointed  and  deputed,  and  by 
Carolina,  South  Carolina  and  these  presents  do  appoint  and  depute 


9,  10] 


TREATY  CLAUSES  OF  THE  CONSTITUTION. 


10 


§  9.  Congress  unable  to  guarantee  observance  of  treaty  obliga- 
tions.— Congress,  under  the  Articles  of  Confederation,  was  unable 
to  guarantee  that  commercial  regulations  under  treaty  provisions 
would  or  could  be  faithfully  observed,  and  there  was,  therefore,  a 
want  of  reciprocity.  Foreign  nations  were  bound  by  their  treaty 
compacts,  while  the  federal  government  had  no  coercive  power 
over  the  states.  Again,  to  quote  Washington:  "America  must  ap- 
pear in  a  very  contemptible  point  of  view  to  those  with  whom  she 
was  endeavoring  to  form  commercial  treaties,  without  possessing 
the  means  of  carrying  them  into  effect.  They  must  see  and  feel 
that  the  Union,  or  the  states  individually,  are  sovereign  as  best 
suits  their  purposes.  In  a  word,  we  are  a  nation  to-day,  and  thir- 
teen to-morrow.  Who  will  treat  with  us  on  such  terms  ? '  '19 

It  was  not  until  the  adoption  of  the  Constitution  that  the  treaty 
of  peace  of  1783  was  faithfully  executed  in  relation  to  British 
debts.20 


§  10.     Refusal   of  states  to  observe  treaty. — Several   of  the 
states  had  refused  to  carry  out  the  terms  of  the  treaty,  and  Great 


them,  the  said  Benjamin  Franklin, 
Silas  Deane,  and  Arthur  Lee,  our 
Commissioners,  giving  and  granting 
to  them,  the  said  Franklin  Deane, 
and  Lee,  or  any  two  of  them,  and  in 
the  case  of  the  death,  absence  or  dis- 
ability of  any  two,  or  any  one  of 
them,  full  power  to  communicate, 
treat,  agree,  and  conclude  with  his 
most  Christian  Majesty,  the  King  of 
France,  or  with  such  person  or  per- 
sons, as  shall  by  him  be  for  that  pur- 
pose authorized,  of  and  upon  a  true 
and  sincere  friendship,  and  a  firm, 
inviolable  and  universal  peace  for 
the  defense,  protection  and  safety,  of 
the  navigation  and  mutual  commerce 
of  the  subjects  of  his  most  Christian 
Majesty,  and  the  people  of  the 
United  States,  and  to  do  all  other 
things,  which  may  conduce  to  those 
desirable  ends,  and  promising  in 
good  faith  to  ratify  whatsoever  our 
said  Commissioners  shall  transact  in 


the  premises.  Done  in  Congress,  in 
Philadelphia,  the  thirtieth  day  of 
September,  in  the  year  of  our  Lord, 
one  thousand  seven  hundred  and  sev- 
enty-six": 2  Secret  Journals  of 
Congress,  32. 

They  reported  to  Congress:  "It 
was  evident  that  the  court  [of 
France],  while  it  treated  us  pri- 
vately with  all  civility,  was  cautious 
of  giving  umbrage  to  England,  and 
was,  therefore,  desirous  of  avoid- 
ing open  reception  and  acknowledg- 
ment of  us,  or  entering  into  any 
formal  negotiations  with  us,  as  min- 
isters from  the  Congress":  2  Dip. 
Cor.  Eev.  283. 

19  5  Marshall's  Life    of    Washing- 
ton,   71,    72;    North    American    Ee- 
view,  Oct.  1827,  p.  257. 

20  Ware  v.  Hylton,  3  Dall.   199,  1 
L.     ed.     568;      Hopkins    v.     Bell,     3 
Cranch,  454,  2  L.  ed.  497. 


11  WANT  OF  JUDICIAL  POWER  TO  ENFORCE  TREATIES.  [§    11 

Britain  demanded  redress  for  these  infractions,  and  had  refused 
in  consequence  to  comply  with  the  stipulations  of  the  treaty  re- 
quiring her  to  surrender  up  the  western  ports.  Through  the  inabil- 
ity of  the  confederacy  to  enforce  treaty  stipulations  the  country 
was  in  danger  of  attacks  by  Indians  on  our  western  limits,  and  the 
address,  drawn  up  in  1787,  by  Mr.  Jay,  Secretary  of  Foreign  Af- 
fairs, and  unanimously  adopted  by  Congress,  displays  the  absolute 
weakness  of  the  confederation  and  also  the  contemptuous  disregard 
of  the  provisions  of  that  treaty  by  the  various  states  in  their  legis- 
lation.21 

As  showing  the  jealousy  entertained  by  the  states  of  the  powers 
of  the  general  government,  it  may  be  observed  that  when  the  Brit- 
ish garrison  was  expected  to  surrender  the  western  posts,  and  it 
was  deemed  necessary  that  possession  of  them  on  behalf  of  Amer- 
ica should  be  taken  by  some  regular  troops,  the  power  of  Congress 
to  make  a  requisition  in  the  states  for  this  object  was  disputed,  and 
it  was  asserted  that  the  power  was  dangerous  to  liberty.  Finally, 
the  proposition  was  rejected,  and  in  place  of  the  regular  troops 
militia  were  sent.22 

§  11.  Want  of  judicial  power  to  enforce  treaties. — Among 
other  defects  that  were  urged  against  the  confederation  was  the 
want  of  judicial  power  to  enforce  treaty  obligations.  "Laws  are 
a  dead  letter, ' '  said  the  Federalist,  ' '  without  courts  to  expound  and 
define  their  true  meaning  and  operation.  The  treaties  of  the  United 
States,  to  have  any  force  at  all,  must  be  considered  as  part  of  the 
law  of  the  land.  Their  true  import,  so  far  as  respects  individuals, 
must,  like  all  other  laws,  be  ascertained  by  judicial  determinations. 
To  produce  uniformity  in  these  determinations,  they  ought  to  be 
submitted,  in  the  last  resort,  to  one  supreme  tribunal.  And  thisx 
tribunal  ought  to  be  instituted  under  the  same  authority,  which 
forms  the  treaties  themselves.  These  ingredients  are  both  indis- 
pensable. If  there  is  in  each  state  a  court  of  final  jurisdiction, 
there  may  be  as  many  different  final  determinations  on  the  same 
point  as  there  are  courts.  There  are  endless  diversities  in  the  opin- 
ions of  men.  We  often  see  not  only  different  courts,  but  the  judges 

21  Journals  of  Congress,  April  13,          a  5  Marshall's  Life  of  Washing- 
1787,  p.  32;   Eawle  on  Constitution,      ton,  App.,  note  1. 
App.  2,  p.  316;  1  Story  on  Constitu- 
tion, sec.  262. 


§    12]  TREATY  CLAUSES  OF  THE  CONSTITUTION.  12 

of  the  same  court  differing  from  each  other.  To  avoid  the  con- 
fusion which  would  unavoidably  result  from  the  contradictory  de- 
cisions of  a  number  of  independent  judicatories,  all  nations  have 
found  it  necessary  to  establish  one  tribunal  paramount  to  the  rest, 
possessing  a  general  superintendence,  and  authorized  to  settle  and 
declare  in  the  last  resort  an  uniform  rule  of  justice.  This  is  the 
more  necessary  where  the  frame  of  the  government  is  so  com- 
pounded that  the  laws  of  the  whole  are  in  danger  of  being  con- 
travened by  the  laws  of  the  parts.  The  treaties  of  the  United 
States,  under  the  present  confederation,  are  liable  to  the  infrac- 
tions of  thirteen  different  legislatures  and  as  many  different  courts 
of  final  jurisdiction,  acting  under  the  authority  of  these  legisla- 
tures. The  faith,  the  reputation,  the  peace  of  the  whole  Union, 
are  thus  continually  at  the  mercy  of  the  prejudices,  the  passions 
and  the  interests  of  every  member,  of  which  these  are  composed. 
Is  it  possible,  under  such  circumstances,  that  the  people  of  Amer- 
ica will  longer  consent  to  trust  their  honor,  their  happiness,  their 
safety,  on  so  precarious  a  foundation?"23 

§  12.  Treaty  of  peace  with  Great  Britain. — A  provisional 
treaty  of  peace  was  made  with  Great  Britain  at  Paris,  November 
30,  1782,  and  was  proclaimed  by  Congress  on  April  11,  1783. 
The  armistice  declaring  a  cessation  of  hostilities  was  con- 
cluded January  20,  1788.,  and  the  definitive  treaty  of  peace 
was  concluded  at  Paris,  September  3,  1783,  ratified  by  Con- 
gress January  14,  1784,  and  proclaimed  the  same  day.  The 
first  article  of  this  treaty  recognized  the  independence  of  the 
United  States;  the  second  fixed  the  boundaries;  the  third  made 
provisions  for  the  unmolested  right  to  take  fish  on  the  New- 
foundland banks  and  in  the  gulf  of  St.  Lawrence.  The  fourth 
article  was:  "It  is  agreed  that  Creditors  on  either  Side,  shall 
meet  with  no  lawful  Impediment  to  the  Recovery  of  the  full 
Value  in  Sterling  Money  of  all  bona  fide  debts  heretofore  con- 
tracted." The  fifth  article  declared:  "It  is  agreed  that  the  Con- 
gress shall  earnestly  recommend  it  to  the  Legislatures  of  the 
respective  States  to  provide  for  the  Restitution  of  all  Estates, 
Rights  and  Properties  which  have  been  confiscated  belonging  to 
real  British  Subjects ;  and  also  for  the  Estates,  Rights  and  Prop- 

'•'  The  Federalist,  No.  22;  1  Kent's     Commentaries,  Lecture  10. 


13  TREATY  OF  PEACE  WITH  GREAT  BRITAIN.         [§  13 

erties  of  Persons  resident  in  Districts  in  the  Possession  of  his 
Majesty's  Arms,  and  who  have  not  borne  Arms  against  the  said 
United  States.  And  that  Persons  of  any  other  Description  shall 
have  free  Liberty  to  go  to  any  Part  or  Parts  of  any  of  the  thir- 
teen United  States  and  therein  to  remain  twelve  Months  un- 
molested in  their  Endeavours  to  obtain  the  Restitution  of  such 
of  their  Estates,  Eights  &  Properties  as  may  have  been  con- 
fiscated. And  that  Congress  shall  also  earnestly  recommend  to 
the  several  States,  a  Reconsideration  and  Revision  of  all  Acts  or 
Laws  regarding  the  Premises,  so  as  to  render  the  said  Laws  or 
Acts  perfectly  consistent,  not  only  with  Justice  and  Equity,  but 
with  that  Spirit  of  Conciliation,  which,  on  the  Return  of  the 
Blessings  of  Peace  should  universally  prevail.  And  that  Con- 
gress shall  also  earnestly  recommend  to  the  several  States,  that 
the  Estates,  Rights  and  Properties  of  such  last  mentioned  Per- 
sons shall  be  restored  to  them,  they  refunding  to  any  Persons  who 
may  be  now  in  Possession,  the  bona  fide  Price  (where  any  has 
been  given)  which  such  Persons  may  have  paid  on  purchasing 
any  of  the  said  Lands,  Rights  or  Properties,  since  the  Confisca- 
tion. 

"And  it  is  agreed  that  all  Persons  who  have  any  Interest  in 
confiscated  Lands,  either  by  Debts,  Marriage  Settlements,  or 
otherwise,  shall  meet  with  no  lawful  Impediment  in  the  Prosecu- 
tion of  their  just  Rights. ' '  24 

§  13.  Same  subject. — The  sixth  article  of  the  treaty  declared: 
"That  there  shall  be  no  future  Confiscations  made  nor  any  Pros- 
ecutions commenced  against  any  Person  or  Persons  for  or  by 
Reason  of  the  Part,  which  he  or  they  may  have  taken  in  the 
present  War,  and  that  no  Person  shall  on  that  Account  suffer 
any  future  Loss  or  Damage,  either  in  his  Person,  Liberty  or 
Property;  and  that  those  who  may  be  in  Confinement  on  such 
Charges  at  the  Time  of  the  Ratification  of  the  Treaty  in  America 
shall  be  immediately  set  at  liberty,  and  the  prosecutions  so  com- 
menced be  discontinued." 

The  seventh  article  stated:  "There  shall  be  a  firm  and  perpetual 
Peace  between  his  Britannic  Majesty  and  the  said  States  and 

24  Compilation  of  Treaties  in  Force,  Government  Printing  Office,  1904,  pp. 
292-294. 


§    14]  TREATY   CLAUSES   OP    THE    CONSTITUTION.  14 

between  the  Subjects  of  the  one,  and  the  Citizens  of  the  other, 
wherefore  all  Hostilities  both  by  Sea  and  Land  shall  from  hence- 
forth cease :  All  Prisoners  on  both  Sides  shall  be  set  at  Liberty, 
and  his  Britannic  Majesty  shall  with  all  convenient  speed,  and 
without  causing  any  Destruction,  or  carrying  away  any  Negroes 
or  other  Property  of  the  American  Inhabitants,  withdraw  all  his 
Armies,  Garrisons  &  Fleets  from  the  said  United  States  and 
from  every  Post,  Place  and  Harbour  within  the  same ;  leaving  in 
all  Fortifications  the  American  Artillery  that  may  be  therein: 
And  shall  also  order  &  cause  all  Archives,  Records,  Deeds  & 
Papers  belonging  to  any  of  the  said  States,  or  their  Citizens, 
which  in  the  Course  of  the  War  may  have  fallen  into  the  Hands 
of  his  Officers,  to  be  forthwith  restored  and  deliver 'd  to  the 
proper  States  and  Persons  to  whom  they  belong." 

In  the  eighth  article  it  was  provided  that:  "The  Navigation 
of  the  River  Mississippi,  from  its  source  to  the  Ocean  shall  for- 
ever remain  free  and  open  to  the  Subjects  of  Great  Britain, 
and  the  Citizens  of  the  United  States. ' ' 

And  in  the  ninth  article  it  was  stipulated:  "In  Case  it  should 
so  happen  that  any  Place  or  Territory  belonging  to  Great  Britain 
or  to  the  United  States  should  have  been  conquer 'd  by  the  Arms 
of  either  from  the  other  before  the  arrival  of  the  said  Provisional 
Articles  in  America  it  is  agreed  that  the  same  shall  be  restored 
without  difficulty  and  without  requiring  any  compensation. ' ' 25 

§  14.  Breaches  of  this  treaty. — There  was  no  power  under  the 
confederation  to  compel  the  observance  of  this  treaty,  and  its 
provisions  were  ignored  by  the^  states.  In  New  York  a  statute 
was  passed  in  1783  by  which  actions  for  rent  were  authorized  to 
be  brought  by  persons  who  had  been  forced  to  abandon  their 
lands  by  the  enemy  against  those  who  were  in  their  occupation 
while  the  enemy  held  possession,  and  which  also  forbade  the 
pleading  in  justification  of  such  occupation  of  any  military  order 
or  command  of  the  enemy.26  Again,  in  1784,  after  the  ratifica- 
tion of  the  treaty,  a  statute  was  passed  in  the  same  state  which 
declared  that  those  inhabitants  who  had  given  their  adhesion 
to  the  enemy,  if  found  within  the  state,  should  be  guilty  of  mis- 

25  Compilation  of  Treaties  in  Force,          26  4   Secret  Journals,   267. 
Government  Printing  Office,  1904,  pp. 
292,  296. 


15  CONSTITUTION  REMOVED  THIS  DEFECT.  [§    15 

prision  of  treason,  and  that  they  should  be  incapable  of  hold- 
ing office  or  of  voting  at  elections.27  Mr.  Jay,  Secretary  of 
Foreign  Affairs,  made  a  report  in  October,  1786,  calling  atten- 
tion to  various  acts- of  the  states  in  conflict  with  the  treaty,  and 
mentioned  among  them  the  statute  passed  in  1784  by  Massachu- 
setts, which  suspended  judgment  for  interest  on  British  debts 
until  a  construction  should  have  been  put  upon  the  treaty  by 
Congress  declaring  it  to  be  due;  the  law  of  Pennsylvania  in  re- 
straint of  the  levy  of  executions;  the  statute  of  New  York  of 
1782,  providing  for  the  restraint  of  the  collection  of  debts  due 
to  persons  within  the  lines  of  the  enemy ;  the  statute  of  Virginia, 
prohibiting  the  collection  of  debts  due  to  British  creditors,  and 
the  statute  of  South  Carolina,  providing  that  they  might  be  paid 
by  land  instead  of  money.28  A  case  was  brought  in  New  York 
to  recover  the  rents  of  property,  under  the  statute  above  noted. 
The  defense  was  conducted  by  Alexander  Hamilton,  who  con- 
tended that  the  statute  violated  the  treaty,  and  his  contention 
was  sustained  by  the  court,  but  the  legislature  of  that  state  de- 
clared that  the  decision  was  subversive  of  law  and  good  order, 
and  recommended  that  such  persons  should  be  appointed  to  of- 
fice as  would  "govern  themselves  by  the  known  law  of  the 
land."29 

§  15.  Constitution  removed  this  defect. — By  the  adoption  of 
the  Constitution,  the  inability  of  the  United  States  to  enforce 
treaty  stipulations  was  removed.  Speaking  of  the  impossibility 
of  securing  concerted  action  among  the  several  states  prior  to 
the  adoption  of  the  Constitution,  Mr.  Curtis  states:  "This  com- 
bined will  of  distinct  communities,  expressed  through  the  action 
of  a  common  agent,  was  wholly  unable  to  overcome  the  adverse 
will  of  any  of  them  expressed  by  another  and  separate  agent, 
although  the  objects  of  the  powers  bestowed  on  the  confederacy 
were  carefully  stated,  and  sufficiently  defined  in  a  public  compact. 

"Thus,  for  example,  the  treaty-making  power  was  expressly 
vested  in  the  United  States  in  Congress  assembled;  but  when  a 
treaty  had  been  made,  it  depended  entirely  upon  the  separate 
pleasure  of  each  state  whether  it  should  be  executed.  If  the 
state  governments  did  not  see  fit  to  enforce  its  provisions  upon 

27  4  Secret    Journals,    269.  "  2  Life  of  Hamilton,  244. 

28  4  Secret  Journals,  209. 


§    15]  TREATY    CLAUSES    OF    THE    CONSTITUTION.  16 

their  own  citizens,  or  thought  proper  to  act  against  them,  there 
was  no  remedy,  both  because  the  Congress  could  not  legislate  to 
control  individuals,  and  because  there  was  no  department  clothed 
writh  authority  to  compel  individuals  to  conform  their  conduct  to 
the  requirements  of  the  treaty,  and  to  disregard  the  opposing  will 
of  the  state. 

"This  defect  was  now  to  be  supplied,  by  giving  to  the  national 
authority,  not  only  theoretically  but  practically,  a  supremacy 
over  the  authority  of  each  state.  But  this  was  not  to  be  done  by 
annihilating  the  state  governments.  The  government  of  every 
state  was  to  be  preserved ;  and  so  far  as  its  original  powers  were 
not  to  be  transferred  to  the  general  government,  its  authority 
over  its  own  citizens  and  within  its  own  territory  must,  from  the 
nature  of  political  sovereignty,  be  supreme.  There  were,  there- 
fore, to  be  two  supreme  powers  in  the  same  country,  operating 
upon  the  same  individuals,  and  both  possessed  of  the  general  at- 
tributes of  sovereignty.  In  what  way,  and  in  what  sense,  could 
one  of  them  be  made  paramount  over  the  other? 

"It  is  manifest  that  there  cannot  be  two  supreme  powers  in 
the  same  community,  if  both  are  to  operate  upon  the  same  ob- 
jects. But  there  is  nothing  in  the  nature  of  political  sovereignty 
to  prevent  its  powers  from  being  distributed  among  different 
agents  for  different  purposes.  This  is  constantly  seen  under  the 
same  government,  when  its  legislative,  executive,  and  judicial 
powers  are  exercised  through  different  officers;  and  in  truth, 
when  we  come  to  the  law-giving  power  alone,  as  soon  as  we  sep- 
arate its  objects  into  different  classes,  it  is  obvious  that  there  may 
be  several  enacting  authorities,  and  yet  each  may  be  supreme 
over  the  particular  subject  committed  to  it  by  the  fundamental 
arrangements  of  society.  Supreme  laws,  emanating  from  sepa- 
rate authorities,  may  and  do  act  on  different  objects  without 
clashing,  or  they  may  act  on  different  parts  of  the  same  object 
with  perfect  harmony.  They  are  inconsistent  when  they  are 
aimed  at  each  other,  or  at  the  same  indivisible  object.  When  this 
takes  place  one  or  the  other  must  yield ;  or,  in  other  terms,  one  of 
them  ceases  to  be  supreme  on  the  particular  occasion.  It  was  the 
purpose  of  the  framers  of  the  Constitution  of  the  United  States  to 
provide  a  paramount  rule  that  would  determine  the  occasions  on 
which  the  authority  of  a  state  should  cease  to  be  supreme,  leaving 
that  of  the  United  States  unobstructed.  Certain  conditions  were 


17  COMMENTS  OF  JAMES  MADISON.  [§    16 

made  necessary  to  the  operation  of  this  rule.  The  state  law  must 
conflict  with  some  provision  of  the  Constitution  of  the  United 
States,  or  with  a  law  of  the  United  States  enacted  in  pursuance 
of  the  constitutional  authority  of  the  Union.  The  operation  of 
this  rule  constitutes  the  supremacy  of  the  national  government. 
It  was  supposed  that,  by  a  careful  enumeration  of  the  objects  to 
which  the  national  authority  was  to  extend,  there  would  be  no 
uncertainty  as  to  the  occasions  on  which  the  rule  was  to  apply; 
and  as  all  other  objects  were  to  remain  exclusively  subject  to  the 
authority  of  the  states  within  their  respective  territorial  limits, 
the  operation  of  the  rule  was  carefully  limited  to  those  occa- 
sions."30 

§  16.  Comments  of  James  Madison. — James  Madison,  urging 
the  ratification  of  the  Constitution  in  the  state  convention  of 
Virginia,  spoke  of  the  weak  powers  possessed  by  the  confedera- 
tion and  of  the  imperative  necessity  of  making  the  treaty-making 
power  effectual.  "The  confederation,"  said  he,  "is  so  notori- 
ously feeble,  that  foreign  nations  are  unwilling  to  form  any 
treaties  with  us;  they  are  apprized  that  our  general  government 
cannot  perform  any  of  its  engagements,  but  they  may  be  violated 
at  pleasure  by  any  of  the  states.  Our  violations  of  treaties  al- 
ready entered  into  proves  this  truth  unequivocally.  No  nation 
will,  therefore,  make  any  stipulations  with  Congress,  conceding 
any  advantages  of  importance  to  us;  they  will  be  the  more  ad- 
verse to  entering  into  engagements  with  us,  as  the  imbecility  of 
our  government  enables  them  to  derive  many  advantages  from 
our  trade,  without  granting  us  any  return.  But  were  this  coun- 
try united  by  proper  bands,  in  addition  to  other  great  advantages, 
we  could  form  very  beneficial  treaties  with  foreign  states.  But 
this  can  never  happen  without  a  change  in  our  system.  Were  we 
not  laughed  at  by  that  minister  of  that  nation,  from  which  we 
may  be  able  yet  to  extort  some  of  the  most  salutary  measures  for 
this  country?  Were  we  not  told  that  it  was  necessary  to  tem- 
porize till  our  government  acquired  consistency?  Will  any  na- 
tion relinquish  national  advantages  to  us?  You  will  be  greatly 
disappointed,  if  you  expect  any  such  good  effects  from  this  con- 
temptible system.  Let  us  recollect  our  conduct  to  that  country 

30  1   Curtis'   Constitutional  History  of  the  United  States,  556,  557. 
Treaties —  2 


§§    17,    18]          TREATY   CLAUSES   OF    THE    CONSTITUTION.  18 

from  which  we  have  received  the  most  friendly  aid.  How  have 
we  dealt  with  that  benevolent  ally?  Have  we  complied  with  our 
most  sacred  obligations  to  that  nation?  Have  we  paid  the  in- 
terest punctually  from  year  to  year?  Is  not  the  interest  ac- 
cumulating, while  not  a  shilling  is  discharged  of  the  principal? 
The  magnanimity  and  forbearance  of  that  ally  are  so  great  that 
she  has  not  called  upon  us  for  her  claims,  even  in  her  own  dis- 
tress and  necessity. ' ' 31 

§  17.  Comments  of  Samuel  Adams. — Samuel  Adams,  of  Massa- 
chusetts, was  at  first  opposed  to  the  ratification  of  the  Constitu- 
tion, but  finally  gave  it  his  approval.  Speaking  of  the  inability 
of  the  confederation  to  secure  the  observance  of  treaties,  he  said : 
"For  want  of  this  power  in  our  national  head,  our  friends  are 
grieved,  and  our  enemies  insult  us.  Our  ambassador  at  the  court 
of  London  is  considered  as  a  mere  cipher,  instead  of  the  repre- 
sentative of  the  United  States.  Therefore,  it  appears  to  me,  that 
a  power  to  remedy  this  evil  should  be  given  to  Congress,  and  the 
remedy  applied  as  soon  as  possible. ' '  32 

§  18.  Formation  of  Constitution. — The  legislature  of  Virginia 
in  January,  1786,  provided  by  a  resolution  for  the  appointment 
of  commissioners,  who  were  to  meet  with  such  others  as  should  be 
appointed  by  the  other  states  in  the  Union,  at  a  time  and  place 
to  be  decided  on,  "to  take  into  consideration  the  trade  of  the 
United  States ;  to  examine  the  relative  situation  and  trade  of  the 
United  States ;  to  consider  how  far  a  uniform  system  in  their  com- 
mercial relations  may  be  necessary,  to  their  common  interest,  and 
their  permanent  harmony ;  and  to  report  to  the  several  states  such 
an  act,  relative  to  this  great  object,  as,  when  unanimously  ratified 
by  them,  will  enable  the  United  States  in  Congress  assembled  to 
provide  for  the  same. ' ' 33  Commissioners  from  five  states  only 
met  at  Annapolis  in  September,  1876,  but  these  agreed  to  take 
no  decisive  action,  but  drafted  a  report  to  be  submitted  to  the 
several  states  and  to  Congress,  in  which  they  recommended  the 
appointment  of  commissions  from  all  the  states  to  meet  at  Phila- 
delphia on  the  second  Monday  in  May  of  the  following  year  to 

31  3   Elliott's  Debates,   135.  33  5  Marshall's  Life  of  Washington, 

82  2  Elliott's  Debates,  123.  90,  91;   1  Kent's  Commentaries,  203. 


19  ORGANIZATION   OF    CONSTITUTIONAL    CONVENTION.  [§    19 

consider  the  situation  of  the  United  States,  and  "to  devise  such 
further  provisions  as  shall  appear  to  them  necessary,  to  render 
the  Constitution  of  the  federal  government  adequate  to  the  ex- 
igencies of  the  Union ;  and  to  report  such  an  act  for  that  purpose 
to  the  United  States  in  Congress  assembled,  as  when  agreed  to  by 
them,  and  afterward  confirmed  by  the  legislature  of  every  state, 
will  effectually  provide  for  the  same."34  While  Virginia  passed 
an  act  for  the  appointment  of  delegates,  no  progress  was  made 
until  Congress,  pursuant  to  a  request  from  the  legislature  of  New 
York,  adopted  on  February  21,  1787,  a  resolution  recommending 
that  a  convention  meet  in  Philadelphia  on  the  second  Monday  in 
May,  1788,  "for  the  purpose  of  revising  the  articles  of  confedera- 
tion, and  reporting  to  Congress,  and  the  several  legislatures,  such 
alterations  and  provisions  therein,  as  shall,  when  agreed  to  in 
Congress,  and  confirmed  by  the  states,  render  the  federal  consti- 
tution adequate  to  the  exigencies  of  the  government,  and  the 
preservation  of  the  Union."35 

§  19.  Organization  of  constitutional  convention. — It  was  not 
before  May  25th  that  seven  states  were  represented,  and  on  that 
day  the  convention  organized  by  unanimously  electing  George 
Washington  president.  A  serious  dispute  arose  over  the  method 
of"  representation,  whether  it  should  be  by  states  or  in  propor- 
tion to  population,  which  finally  resulted  in  a  compromise  of  the 
antagonistic  interests  by  allowing  proportional  representation  in 
one  branch  of  Congress  and  representation  by  states  in  the  other. 
On  July  26th,  the  various  resolutions  to  which  assent  had  been 
given  were  submitted  to  a  Committee  of  Detail,  of  five  members,  con- 
sisting of  Butledge,  Randolph,  Gorham,  Ellsworth  and  Wilson, 
and  an  adjournment  was  taken  to  August  6th,  to  enable  the  com- 
mittee to  prepare  the  form  of  a  constitution.  The  Committee  on 
Detail  reported  to  the  convention,  and  after  many  acrimonious 
debates  on  the  various  propositions  advanced,  the  convention 
finally,  on  September  8th,  appointed  a  committee  of  five,  consist- 
ing of  Johnson,  Hamilton,  Gouverneur  Morris,  Madison  and  King, 
to  make  a  revision  of  the  language  and  arrangement  of  the  articles 

34  5  Marshall 's  Life  of  Washington,  35  5  Marshall 's  Life  of  Washington, 

97;   1  Amer.  Museum,  267,  268.  124,  125;   2  Pitk.  Hist.,  219,  220;   12 

Journals  of  Congress,  12. 


§    20]  TREATY  CLAUSES  OF  THE  CONSTITUTION.  20 

adopted.  This  Committee  on  Style  reported  to  the  convention 
on  September  12th  of  that  year,  after  which  a  number  of  un- 
important amendments  were  made,  but  among  others,  after  this 
report  had  been  submitted,  the  convention  adopted  an  amend- 
ment authorizing  one  representative  for  every  thousand  people, 
and  another  that  no  state  should,  unless  it  consented,  lose  its 
equal  representation  in  the  Senate.  Congress  received  the  report 
of  the  convention  on  September  28,  1787,  and  unanimously 
adopted  a  resolution  declaring  "that  the  said  report,  with  the 
resolutions  and  letter  accompanying  the  same,  be  transmitted  to 
the  several  legislatures  in  order  to  be  submitted  to  a  convention 
of  delegates  chosen  in  each  state  by  the  people  thereof;  in  con- 
formity to  the  resolves  of  the  convention,  made  and  provided  in 
that  case."36 

§  20.  Address  to  Congress. — The  letter  referred  to  in  the  reso- 
lution quoted  above,  addressed  to  Congress,  stated  that  it  was 
impracticable  to  provide  for  the  interest  and  safety  of  all  the 
states,  and  at  the  same  time  to  secure  all  the  rights  of  independ- 
ent sovereignty  to  each.  "Individuals  entering  into  society," 
said  the  address,  "must  give  up  a  share  of  liberty  to  preserve  the 
rest.  The  magnitude  of  the  sacrifice  must  depend  as  well  on  situ- 
ation and  circumstance  as  on  the  object  to  be  attained.  It  is  at 
all  times  difficult  to  draw  with  precision  the  line  between  these 
rights  and  those  which  may  be  reserved ;  and  on  the  present  occa- 
sion, the  difficulty  was  increased,  by  a  difference  among  the  sev- 
eral states,  as  to  their  situation,  extent,  habits,  and  particular 
interests.  In  all  our  deliberations  on  the  subject,  we  kept  stead- 
ily in  our  view  that  which  appears  to  us  the  greatest  interest  of 
every  true  American,  the  consolidation  of  our  Union,  in  which  is 
involved  our  prosperity,  felicity,  safety,  perhaps  our  national  ex- 
istence. This  important  consideration,  seriously  and  deeply  im- 
pressed on  our  minds,  led  each  state  in  the  convention  to  be  less 
rigid  on  points  of  inferior  magnitude  than  might  have  been  other- 
wise expected.  And  thus  the  Constitution,  which  we  now  pre- 
sent, is  the  result  of  a  spirit  of  amity,  and  of  that  mutual  defer- 
ence and  concession,  which  the  peculiarity  of  our  political  situa- 

36  5  Marshall's  Life  of  Washington,      III,  323;    Elliott,  V,   191;   Conway's 
128;  12  Journal  of  Congress,  99,  110.       Randolph,  p.  71. 
See,  also,  Spark 's  Gouverneur  Morris, 


21  COMMENTS  OF  JOHN  JAY.  [§21 

tion  rendered  indispensable."37  The  Constitution  having  been 
ratified  by  the  requisite  number  of  states,  a  resolution  was  passed 
by  Congress  on  September  13,  1788,  fixing  the  first  Wednesday  in 
January,  1789,  for  the  assembling  of  electors  to  choose  a  Pres- 
ident, and  designating  the  first  Wednesday  in  March  of  that  year 
for  the  inauguration  of  the  government  under  the  Constitution. 

§  21.  Comments  of  John  Jay. — With  reference  to  the  clause 
of  the  Constitution  relating  to  the  negotiation  and  ratification  of 
treaties,  he  said:  "Some  are  displeased  with  the  Constitution,  not 
on  account  of  any  errors  or  defects  in  it,  but  because,  as  the 
treaties,  when  made,  are  to  have  the  force  of  laws,  they  should 
be  made  only  by  men  invested  with  legislative  authority.  These 
gentlemen  seem  not  to  consider  that  the  judgments  of  our  courts, 
and  the  commissions  constitutionally  given  by  our  governor,  are 
as  valid  and  as  binding  on  all  persons  whom  they  concern,  as  the 
laws  passed  by  our  legislature.  All  constitutional  acts  of  power, 
whether  in  the  executive  or  the  judicial  department,  have  as 
much  legal  validity  and  obligation  as  if  they  proceeded  from  the 
legislature ;  and  therefore,  whatever  name  may  be  given  to  the 
power  of  making  treaties,  or  however  obligatory  they  may  be 
when  made,  certain  it  is,  that  the  people  may,  with  much  pro- 
priety, commit  the  power  to  a  distinct  body  from  the  legislature, 
the  executive,  or  the  judiciary.  It  surely  does  not  follow  that 
because  they  have  given  the  power  of  making  laws  to  the  legis- 
lature, that  therefore  they  should  likewise  give  them  power  to 
do  every  other  act  of  sovereignty  by  which  the  citizens  are  to  be 
bound  and  affected.  Others^  though  content  that  treaties  should 
be  made  in  the  mode  proposed,  are  averse  to  their  being  the 
supreme  laws  of  the  land.  They  insist,  and  profess  to  believe, 
that  treaties,  like  acts  of  assembly,  should  be  repealable  at  pleas- 
ure. This  idea  seems  to  be  new  and  peculiar  to  this  country; 
but  new  errors  as  well  as  new  truths  often  appear.  These  gen- 
tlemen would  do  well  to  reflect  that  a  treaty  is  only  another 
name  for  a  bargain,  and  that  it  would  be  impossible  to  find  a 
nation  who  would  make  any  bargain  with  us  which  would  be 
binding  on  them  absolutely,  but  on  us  only  so  long  and  so  far  as 
we  may  think  proper  to  be  bound  by  it.  They  who  make  ]aws  may, 

87  12  Journal  of  Congress,  99,  110;    5  Marshall's  Life  of  Washington,  128. 


§    21]  TREATY    CLAUSES    OF    THE    CONSTITUTION.  22 

without  doubt,  amend  or  repeal  them,  and  it  will  not  be  dis- 
puted that  they  who  make  treaties  may  alter  or  cancel  them; 
but  still  let  us  not  forget  that  treaties  are  made,  not  only  by 
one  of  the  contracting  parties,  but  by  both;  and  consequently, 
that  as  the  consent  of  both  was  essential  to  their  formation  at 
first,  so  must  it  ever  afterward  be  to  alter  or  cancel  them.  1'he 
proposed  Constitution,  therefore,  has  not  in  the  least  extended 
the  obligation  of  treaties.  They  are  just  as  binding  and  just  as 
far  beyond  the  lawful  reach  of  legislative  acts  now  as  they  will 
be  at  any  future  period  or  under  any  form  of  government." 
But,  as  we  shall  see  on  a  subsequent  page,  Jay  was  mistaken  as 
to  the  immutability  of  treaties,  because  it  is  settled  that  a  treaty 
may  be  repealed  or  rendered  inoperative  by  a  later  act  of  Con- 
gress. 

38  1  Lodge,  Federalist,  403,  404. 


23  PROHIBITION    ON    STATES.  [§§    22,    23 

CHAPTER  II. 

PEOHIBITION  ON  STATES. 

§  22.  Prohibitory  clauses. 

§  23.  History  of  this  clause. 

§  24.  Confederate  states  had  no  legal  existence. 

§  25.  Constitutional  objections  to  statute. 

§  26.  Surrender  of  treaty  power  to  general  government. 

§  27.  Investment  by  guardian  in  Confederate  bonds. 

§  28.  Discharge  of   executor  investing  in   Confederate  bonds. 

§  29.  Confederacy  an   organized  treason. 

§  30.  Contracts  to  aid  the   confederacy  void. 

§  31.  Ordinance    of   secession    a   nullity. 

§  32.  Sale  of  property  of  loyal  owners. 

§  33.  Laws  in  aid  of  insurrection  void. 

§  34.  Judgments  of  courts,  when  void. 

§  35.  No  general  rule  to  be  applied. 

§  36.  State  cannot  negotiate  for  extradition. 

§  37.  Holmes  case. 

§  38.  Treaties  now  govern. 

§  22.  Prohibitory  clauses.— The  Constitution  contains  two 
clauses  prohibiting  the  states  of  the  Union  from  entering  into 
treaties  with  foreign  powers  or  entering  into  any  agreement  or 
compact  with  another  state  or  with  a  foreign  power. 

The  first  clause  provides  that  "No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation;  grant  letters  of  marque  and 
reprisal;  coin  money;  emit  bills  of  credit;  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of  debts;  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  or  grant  any  title  of  nobility. ' ' 1  The  other  clause 
will  be  noticed  in  the  following  chapter. 

§  23.  History  of  this  clause. — This  provision  originated  in  the 
Committee  on  Detail,  who  reported  among  other  prohibitions  to 
be  placed  on  the  states  that  "No  state  shall  coin  money,  nor 
grant  letters  of  marque  and  reprisal,  nor  enter  into  any  treaty, 
alliance  or  confederation,  nor  grant  any  title  of  nobility."  The 
clause  was  amended  by  the  convention  by  prohibiting  the  emission 
of  bills  of  credit,  or  the  making  of  anything  but  gold  and  silver 

1  Const.,  art.  I,  sec.  10,  cl.  1. 


§    24]  PROHIBITION  ON  STATES.  24 

coin  a  tender  in  payment  of  debts.  The  clause  as  amended  by  the 
convention  then  read:  "No  state  shall  coin  money,  nor  emit  bills 
of  credit,  nor  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts;  nor  grant  letters  of  marque  and  reprisal; 
nor  enter  into  any  treaty,  alliance,  or  confederation;  nor  grant 
any  title  of  nobility. ' '  Finally,  on  September  14th,  after  the  re- 
port of  the  Committee  on  Style,  to  whom  the  clause  had  been 
referred,  submitted  their  report,  the  phraseology  was  changed 
to  the  form  in  which  it  now  appears. 

§  24.  Confederate  states  had  no  legal  existence. — The  organi- 
zation known  as  the  Confederate  states  cannot  be  regarded  under 
this  clause  of  the  Constitution  as  having  any  legal  existence.  The 
Confederate  states  enacted  a  law  sequestering  the  property  and 
rights  held  by  or  for  any  alien  enemy  since  May  21,  1861,  except 
such  debts  as  may  have  been  paid  into  the  treasury  of  one  of 
the  Confederate  states  before  the  passage  of  the  law,  and  making  it 
the  duty  of  every  agent  or  trustee  holding  or  controlling  any  such 
interest  or  property  to  inform  the  receiver  of  the  Confederate 
states  of  the  fact,  and  to  render  an  account  thereof,  and  to  place 
the  same  in  the  hands  of  the  receiver,  so  far  as  practicable.  The 
statute  declared  that  the  person  placing  the  property  in  the 
hands  of  such  receiver  should  be  acquitted  of  all  responsibility 
for  the  property  thus  transferred,  and  that  any  person  failing 
to  give  the  information  described  should  be  guilty  of  a  misde- 
meanor. In  an  action  of  assumpsit  for  goods  sold,  a  plea  was 
interposed  of  this  statute,  and  payment  thereunder  of  the  amount 
claimed  by  plaintiff  to  the  receiver  of  the  Confederate  states.  It 
was  contended  that  the  supreme  court  had  no  appellate  jurisdic- 
tion, but  the  court  held  that  the  jurisdiction  of  the  court  could 
be  sustained,  among  other  grounds,  upon  the  fact  that  the  com- 
pact made  by  the  states  forming  the  confederacy  was  in  violation 
of  the  clause  prohibiting  any  treaty,  alliance  or  confederation  by 
one  state  with  another.  As  the  confederacy  could  not  legally 
exist,  whatever  legal  force  the  enactment  possessed  was  due  solely 
to  the  sanction  given  to  it  by  the  individual  state.  Any  enact- 
ment, from  whatever  source  it  might  originate,  to  which  a  state 
gives  the  force  of  law.  was  considered  to  be  a  statute  of  the  state 
within  the  meaning  of  the  provisions  conferring  appellate  juris- 
diction upon  the  supreme  court.  "It  would  be  a  narrow  construe- 


25  CONSTITUTIONAL    OBJECTIONS    TO  STATUTE.  [§    25 

tion, ' '  said  Mr.  Justice  Field,  delivering  the  opinion  of  the  court, 
"to  limit  the  term  to  such  enactments  as  have  gone  through  vari- 
ous stages  of  consideration  by  the  legislature.  There  may  be 
many  acts  authorized  by  the  Constitution  of  a  state,  or  by  the 
convention  that  framed  it,  which  have  not  been  submitted  to  the 
consideration  of  its  legislature,  yet  have  all  the  efficacy  of  laws. 
By  the  only  authority  which  can  be  recognized  as  having  any 
legal  existence,  that  is  the  state  of  Virginia,  this  act  of  the 
unauthorized  confederation  was  enforced  as  a  law  of  the  common- 
wealth."2 

§  25.  Constitutional  objections  to  statute. — It  was  asserted 
that  this  statute  was  repugnant  to  the  Constitution  of  the  United 
States  because  it  impaired  the  obligation  of  a  contract,  and  that 
it  discriminated  against  the  citizens  of  a  loyal  state  and  refused 
them  the  same  privileges  accorded  to  the  citizens  of  Virginia 
violating  the  provision  declaring  that  "citizens  of  each  state  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citizens  of  the 
several  states. ' '  It  was  also  contended  that  the  enactment  of  the 
Confederate  states  was  that  of  an  independent  nation,  but  the 
court  decided  that  it  could  not  be  treated  either  as  the  act  of  an 
independent  nation  or  of  a  de  facto  government,  but  must  be  con- 
sidered as  the  act  of  a  portion  of  a  state  attempting  unsuccessfully 
to  establish  a  separate  revolutionary  government,  which,  with  the 
overthrow  of  its  military  forces,  perished  completely  with  all  its 
enactments.  While  belligerent  rights  may  have  been  conceded  to 
the  Confederate  states,  this  concession  conferred  no  other  -rights, 
approved  no  hostile  legislation,  and  impaired  in  no  degree  the 
rights  of  loyal  citizens  as  they  had  existed  when  hostilities  com- 
menced.3 The  Constitution  was  as  much  intended  to  preserve 
the  government  of  the  separate  states  as  it  was  to  preserve  the 
government  of  the  Union  itself,  and,  hence,  the  rights  and  ob- 

2  Williams  v.  Bruffy,  96  U.  S.  183,       mutual  sympathies,  kindred  principles, 
24  L.  ed.  716.  similar  interests  and  geographical  re- 

3  Williams  v.  Bruffy,  96  U.  S.  183,       lations.    It  was  confirmed  and  strength- 
24  L.  ed.  716.  ened  by  the  necessities  of  war,   and 

Mr.  Chief  Justice  Chase,  in  Texas  received  definite  form,  and  character, 
v.  White,  7  Wall.  700,  19  L.  ed.  227,  and  sanction  from  the  Articles  of  Con- 
said  :  '  <  The  Union  of  the  States  never  federation.  By  these  the  Union  was 
was  a  purely  artificial  and  arbitrary  solemnly  declared  to  'be  perpetual.' 
relation.  It  began  among  the  Col-  And  when  these  Articles  were  found 
onies,  and  grew  out  of  common  origin,  to  be  inadequate  to  the  exigencies  of 


§  25] 


PROHIBITION  ON   STATES. 


26 


ligations  of  the  citizens  of  the  seceding  states  could  not  be  al- 
tered or  affected  by  any  ordinance  of  secession. 


the  country,  the  Constitution  was  or- 
dained 'to  form  a  more  perfect 
Union. '  It  is  difficult  to  convey  the 
idea  of  indissoluble  unity  more  clearly 
than  by  these  words.  What  can  be 
indissoluble  if  a  perfect  Union,  made 
more  perfect,  is  not? 

"But  the  perpetuity  and  indis- 
solubility  of  the  Union  by  no  means 
implies  the  loss  of  distinct  and  in- 
dividual existence,  or  of  the  right  of 
self-government  by  the  States.  Under 
the  Articles  of  Confederation  each 
State  retained  its  sovereignty,  free- 
dom and  independence,  and  every 
power,  jurisdiction  and  right  not  ex- 
pressly delegated  to  the  United  States. 
Under  the  Constitution,  though  the 
powers  of  the  States  were  much  re- 
stricted, still,  all  powers  not  delegated 
to  the  United  States,  nor  prohibited 
to  the  States,  are  reserved  to  the 
States  respectively  to  the  people.  And 
we  have  already  had  occasion  to  re- 
mark at  this  term,  that  'the  people  of 
each  State  compose  a  State,  having  its 
own  government,  and  endowed  with  all 
the  functions  essential  to  separate 
and  independent  existence,'  and  that 
'without  the  States  in  union,  there 
could  be  no  such  politicalbody  as  the 
United  States. ;  Lane  Co.  v.  Oregon 
(infra,  101).  Not  only,  therefore, 
can  there  be  no  loss  of  separate  and 
independent  autonomy  to  the  States, 
through  their  union  under  the  Con- 
stitution, but  it  may  be  not  unreason- 
ably said  that  the  preservation  of  the 
States,  and  the  maintenance  of  their 
governments,  are  as  much  within  the 
design  and  care  of  the  Constitution 
as  the  preservation  of  the  Union  and 
the  maintenance  of  the  National  Gov- 
ernment. The  Constitution,  in  all  its 
provisions,  looks  to  an  indestructible 


Union,  composed  of  indestructible 
States. 

' '  When,  therefore,  Texas  became 
one  of  the  United  States,  she  entered 
into  an  indissoluble  relation.  All  the 
obligations  of  perpetual  union,  and  all 
the  guaranties  of  republican  govern- 
ment in  the  Union,  attached  at  once 
to  the  State.  The  Act  which  consum- 
mated her  admission  into  the  Union 
was  something  more  than  a  compact; 
it  was  the  incorporation  of  a  new 
member  into  the  political  body.  And 
it  wras  final.  The  Union  between 
Texas  and  the  other  States  was  as 
complete,  as  perpetual  and  as  in- 
dissoluble as  the  Union  between  the 
original  States.  There  was  no  place 
for  reconsideration,  or  revocation,  ex- 
cept through  revolution,  or  through 
consent  of  the  States. 

"Considered,  therefore,  as  the 
transactions  under  the  Constitution, 
the  Ordinance  of  Secession,  adopted 
by  the  convention  and  ratified  by  a 
majority  of  the  citizens  of  Texas,  and 
all  the  Acts  of  her  Legislature  in- 
tended to  give  effect  to  that  ordi- 
nance, were  absolutely  null.  They 
were  utterly  without  operation  in  law. 
The  obligations  of  the  State  as  a 
member  of  the  Union,  and  of  every 
citizen  of  the  State  as  a  citizen  of  the 
United  States,  remained  perfect  and 
unimpaired.  It  certainly  followed 
that  the  State  did  not  cease  to  be  a 
State,  nor  her  citizens  to  be  citizens 
of  the  Union.  If  this  were  otherwise, 
the  State  must  have  become  foreign, 
and  her  citizens  foreigners.  The  war 
must  have  ceased  to  be  a  war  for  the 
suppression  of  rebellion,  must  have 
become  a  war  for  conquest  and  sub- 
jugation. 


27     SURRENDER  OF  TREATY  POWER  TO  GENERAL  GOVERNMENT.  [§  26 


§  26.  Surrender  of  treaty  power  to  general  government. — By 
this  clause  and  the  clause  conferring  upon  the  President,  with  the 
advice  and  consent  of  the  Senate,  the  power  to  make  treaties,  the 
treaty-making  power  has  been  surrendered  by  the  states  to  the 
general  government.  "There  can  be  no  mistaking  the  signifi- 
cance or  effect  of  these  plain,  concise,  emphatic  provisions."4 
Under  our  system  of  government,  the  Constitution,  laws  and 
treaties  of  the  United  States  are  a  part  of  the  law  of  every  state 
to  the  same  extent  as  are  its  own  Constitution  and  laws,  for  if 
the  national  government  is  not  empowered  to  stipulate  by  treaty 
as  to  the  rights,  privileges  and  immunities  of  foreigners  residing 
in  the  United  States,  the  power  does  not  exist  at  all,  because  it  is 
denied  to  the  states. 


' '  Our  conclusion,  therefore,  is,  that 
Texas  continued  to  be  a  State,  and  a 
State  of  the  Union,  notwithstanding 
the  transactions  to  which  we  have  re- 
ferred. And  this  conclusion,  in  our 
judgment,  is  not  in  conflict  with  any 
act  or  declaration  of  any  department 
of  the  National  Government,  but  en- 
tirely in  accordance  with  the  whole 
series  of  such  acts  and  declarations 
since  the  first  outbreak  of  the  Ke- 
bellion. 

"But  in  order  to  the  exercise,  by 
a  State,  of  the  right  to  sue  in  this 
court,  there  needs  to  be  a  State  Gov- 
ernment, competent  to  represent  the 
State  in  its  relations  with  the  National 
Government,  so  far  at  least  as  the 
institution  and  prosecution  of  a  suit 
is  concerned. 

"And  it  is  by  no  means  a  logical 
conclusion,  from  the  premises  which 
we  have  endeavored  to  establish,  that 
the  governmental  relations  of  Texas 
to  the  Union  remain  unaltered.  Obli- 
gations often  remain  unimpaired, 
while  relations  are  greatly  changed. 
The  obligations  of  allegiance  to  the 
State,  and  obedience  to  her  laws,  sub- 
ject to  the  Constitution  of  the  United 
States,  are  binding  upon  all  citizens, 


whether  faithful  or  unfaithful  to 
them;  but  the  relations  which  subsist 
while  these  obligations  are  performed, 
are  essentially  different  from  those 
which  arise  when  they  are  disregarded 
and  set  at  nought. 

"And  the  same  must  necessarily  be 
true  of  the  obligations  and  relations 
of  States  and  citizens  to  the  Union. 
No  one  has  been  bold  enough  to  con- 
tend that,  while  Texas  was  controlled 
by  a  government  hostile  to  the  United 
States,  and  in  affiliation  with  a  hostile 
confederation,  waging  war  upon  the 
United  States,  Senators  chosen  by 
her  Legislature,  or  Eepresentatives 
elected  by  her  citizens,  were  entitled 
to  seats  in  Congress;  or  that  any  suit, 
instituted  in  her  name,  could  be  enter- 
tained in  this  court.  All  admit,  that 
during  this  condition  of  civil  war,  the 
rights  of  the  State  as  a  member,  and 
of  her  people  as  citizens  of  the  Union, 
were  suspended.  The  government  and 
the  citizens  of  the  State,  refusing  to 
recognize  their  constitutional  obliga- 
tions, assumed  the  character  of 
enemies,  and  incurred  the  consequences 
of  rebellion. ' ' 

*  In  re  Tiburcio  Parrott,  1  Fed.  501, 
6  Saw.  349,  per  Sawyer,  J. 


§§    27-29]  PROHIBITION  ON  STATES.  28 

§  27.  Investment  by  guardian  in  Confederate  bonds. — It  was 
unlawful  for  a  guardian  to  invest  money  of  his  ward  during  the 
war  of  the  Rebellion,  while  both  he  and  the  ward  were  residing 
in  the  territory  of  the  enemy,  in  bonds  of  the  so-called  Confed- 
erate states.  The  guardian  is  responsible  to  the  ward  for  all  the 
money  so  invested  by  him.5 

"The  so-called  Confederate  government  was  in  no  sense  a 
lawful  government,  but  was  a  mere  government  of  force,  having 
its  origin  and  foundation  in  rebellion  against  the  United  States 
The  notes  and  bonds  issued  in  its  name  and  for  its  support  had  no 
legal  value  as  money  or  property,  except  by  agreement  or  accept- 
ance of  parties  capable  of  contracting  with  each  other,  and  can 
never  be  regarded  by  a  court  sitting  under  the  authority  of  the 
United  States  as  securities  in  which  trust  funds  might  be  law- 
fully invested. ' ' 6 

§  28.    Discharge  of  executor  investing  in  Confederate  bonds.— 

An  executor  cannot  be  Discharged  from  liability  to  the  legatees, 
because,  in  pursuance  of  the  terms  of  a  state  statute  and  with 
the  approval  of  the  probate  court  appointing  him  he  had  invested 
the  funds  of  the  estate  in  bonds  of  the  Confederate  states,  which, 
while  he  held  them,  became  worthless.7 

§  29.  Confederacy  an  organized  treason. — While  the  acts  of 
the  states  in  rebellion  in  the  ordinary  course  of  administration 
of  law  should,  in  the  interests  of  civil  society,  be  upheld,  still 
the  government  of  the  confederacy  had  no  existence  excepting  as 
an  organized  treason.  During  its  continuance,  its  purpose  was 
to  subvert  the  lawful  government,  and  its  laws  and  decrees.  No 
validity  can  be  derived  from  its  authority,  for  any  act  performed 
in  its  service  or  in  aid  of  its  purpose.  Hence  a  person  purchas- 
ing cotton  from  the  Confederate  states,  knowing  that  the  money 
paid  by  him  went  to  sustain  the  Rebellion,  cannot  recover  the 
proceeds  in  the  court  of  claims,  when  it  has  been  captured  and 
sold  under  the  Captured  and  Abandoned  Property  Act.  In  a 
court  of  law,  the  moral  turpitude  of  the  transaction  is  such  that 

5  Lamar  v.  Micou,  112  U.  S.  453,  5      Micou,  112  U.  S.  453,  5  Sup.  Ct.  Eep. 
Sup.  Ct.  Kep.  221,  28  L.  ed.  751.  221,  28  L.  ed.  751. 

6  Mr.    Justice    Gray,    in    Lamar    v.  T  Horn  v.  Lockhart,   84  U.   S.    (17 

Wall.)   570,  21  L.  ed.  657. 


29  CONFEDERACY  AN  ORGANIZED  TREASON.          [§  29 

he  should  not  be  allowed  to  establish  his  title  by  proving  such  a 
transaction.8 

Mr.  Justice  Miller,  who  delivered  the  opinion  of  the  court,  in  the 
case  just  cited,  said  that  the  fact  that  the  claimant  did  not  intend  to 
aid  the  Rebellion,  but  only  to  make  money,  did  not  relieve  the  case 
of  its  harsh  features,  and  speaking  of  the  government  of  the  Confed- 
erate states  said :  "  So  far  from  being  necessary  to  the  organization 
of  civil  government,  or  to  its  maintenance  and  support,  it  was  in- 
imical to  social  order,  destructive  to  the  best  interests  of  society, 
and  its  primary  object  was  to  overthrow  the  Government  on 
which  these  so  largely  depended.  Its  existence  and  temporary 
powers  were  an  enormous  evil,  which  the  whole  force  of  the  Gov- 
ernment and  the  people  of  the  United  States  was  engaged  for 
years  in  destroying.  When  it  was  overthrown  it  perished  totally. 
It  left  no  laws,  no  statutes,  no  decrees,  no  authority  which  can 
give  support  to  any  contract,  or  any  act  done  in  its  service,  or  in 
aid  of  its  purpose,  or  which  contributed  to  protract  its  existence. 
So  far  as  the  actual  exercise  of  its  physical  power  was  brought 
to  bear  upon  individuals,  that  may,  under  some  circumstances, 
constitute  a  justification  or  excuse  for  acts  otherwise  indefen- 
sible ;  but  no  validity  can  be  given  in  the  courts  of  this  country  to 
acts  voluntarily  performed  in  direct  aid  and  support  of  its 
unlawful  purpose.  What  of  good  or  evil  has  flowed  from  it  re- 
mains for  the  consideration  and  discussion  of  the  philosophical 
statesman  and  historian. ' '  9 

8  Sprott  v.  United  States,  87  If.  S.  citizen  of  Mississippi,  and  resided 

(20  Wall.)  459,  22  L.  ed.  371.  within  the  lines  of  the  Confederacy, 

0  Sprott  v.  United  States,  supra.  and  the  Act  forbidding  intercourse 
Justices  Clifford  and  Davis  concurred  with  the  enemy  does  not  apply  to  his 
in  the  judgment.  Mr.  Justice  Field  case.  He  was  subject  to  be  treated, 
dissented,  and  said  there  was  no  ques-  in  common  with  other  citizens  of  the 
tion  of  enforcing  a  contract  in  the  Confederacy,  as  a  public  enemy,  dur- 
case,  and  that  the  only  question  was  ing  the  continuance  of  the  war.  And 
whether  the  cotton,  at  the  time  of  if  he  were  disloyal  in  fact,  and  if  by 
seizure,  was  the  property  of  the  claim-  his  purchase  of  the  cotton  he  gave 
ant.  "If  it  was  his  property, ' '  said  aid  and  comfort  to  the  rebellion,  as  the 
he,  "then  he  is  entitled  to  its  pro-  court  adjudges,  the  impediment  which 
ceeds,  and  the  judgment  of  the  Court  such  conduct  previously  interposed  to 
of  Claims  should  be  reversed;  and  in  the  prosecution  of  his  claim  was  re- 
determining  this  question  we  are  not  moved  by  the  proclamation  of  Pardon 
concerned  with  the  consideration  of  and  Amnesty  made  by  the  President 
his  loyalty  or  disloyalty.  He  was  a  on  the  25th  day  of  December,  1868. 


§§    30,    31]  '    PROHIBITION   ON   STATES.  .30 

§  30.  Contracts  to  aid  the  confederacy  void. — All  contracts 
entered  into  for  the  purpose  of  aiding  the  Confederate  govern- 
ment are  considered  illegal  and  void,  and  will  not  be  enforced  in 
the  federal  tribunals.10  An  agent  living  in  one  of  the  states  in 
rebellion  had  no  right  to  take  Confederate  money,  or  bank  notes 
secured  by  Confederate  bonds,  in  discharge  of  a  debt  due  to  his 
principal,  who  lived  in  a  state  loyal  to  the  Union.11 

§  31.  Ordinance  of  secession  a  nullity. — The  ordinances  of 
secession  passed  by  various  southern  states  were  absolutely  void, 
and  in  no  manner  affected  the  jurisdiction  of  the  supreme  court 
of  the  state  nor  the  relation  it  always  bore  to  the  appellate  power 
of  the  supreme  court  of  the  United  States.12  The  state  continued 
to  be  during  the  Rebellion  the  same  political  organization  as  be- 
fore,13 and,  therefore,  a  state  adjudication  in  favor  of  the  validity 
of  an  act  of  the  Confederate  Congress,  which  the  state  recognizes 
and  enforces  as  a  law,  and  which  must,  consequently,  be  consid- 
ered as  a  statute  of  that  state,  is  subject  to  review  by  the  supreme 
court  of  the  United  States.14  In  the  jurisprudence  of  that  court 
nothing  is  more  firmly  established  than  that  all  acts  done  in  aid 
of  the  Rebellion  were  illegal  and  of  no  validity.15 

....  He    was    in    possession    of    the  land,    except    such    as   becomes   booty 

property  at  the  time  of  the  seizure,  as-  when  taken  from  enemies  in  the  field 

serting  ownership  to  it;    and  no  one  or  besieged  towns,   or  is  levied  as  a 

then  disputed,  and  no  one  since  has  military  contribution  upon  the  inhab- 

disputed  his  title.     Who,  then,  owned  itants  of  the  hostile  territory,  is  ex- 

the    property,   if    he     did    not.     The  empf  from  confiscation  by  the  general 

United  States  did  not  own  it.     They  law   of  nations." 

did  not  acquire  by  its  seizure  any  title  10  Hanauer  v.  Doane,  79  U.  S.   (12 

to  the  property.     They  have  never  as-  Wall.)    342,   20  L.  ed.  439;    Hanauer 

serted     any     greater     rights     arising  v.  Woodruff,  82  U.  S.  (15  Wall.)  439, 

from  captuie  of  property  on  land  in  21  L.   ed.   224. 

the  hands  of  citizens  engaged  in  the  "  Fretz    v.    Stover,    89    U.    S.    (22 

rebellion,  than  those  which  one  bellig-  Wall.)  198,  22  L.  ed.  769. 

erent  nation  asserts  with  reference  to  ia  White    v.    Cannon,    6    Wall.    443, 

such  property  captured  by  it  belong-  450,  18  L.  ed.  923. 

ing  to  the  citizens  or  subjects  of  the  13  Keith  v.   Clark,   7   Otto,   454,   24 

other  belligerent.     All  public  property  L.  ed.  1071. 

which  is  movable  in  its  nature,   pos-  14  Ford  v.   Surget,  7   Otto,  594,   24 

sessed  by   one   belligerent,  and  employ-  L.  ed.  1018. 

nd  on  land  in  actual  hostilities,  passes  13  Dewing    v.    Perdicaris,     6    Otto, 

by  capture.     But  private  property  on  193,  24  L.  ed.  654. 


31  SALE  OF  PROPERTY  OF  LOYAL  OWNERS.  [§§    32,  33 

§  32.  Sale  of  property  of  loyal  owners.— Neither  a  purchaser 
nor  his  assignee  can  obtain  any  title  to  the  property  of  loyal 
owners,  sequestered  and  sold  under  a  statute  of  the  Confederate 
states.16  A  court  created  by  an  act  of  the  Confederate  Congress 
was  a  nullity,  and  could  possess  no  rightful  jurisdiction,  and  it 
afforded  no  protection  to  those  who  assumed  to  be  its  officers.17 

§  33.  Laws  in  aid  of  insurrection  void. — The  courts  of  the 
United  States  cannot  recognize  as  valid  or  binding  any  law 
made  to  aid  or  promote  the  Rebellion.  A  law  passed  by  a  legis- 
lature of  a  state  in  rebellion  authorizing  and  requiring  &  city  to 
redeem  notes  issued  by  it  as  currency  did  not  make  such  bills 
valid.18  So,  treasury  notes  authorized  to  be  issued  by  the  legis- 
lature of  Mississippi,  when  it  was  in  insurrection,  inasmuch  as 
they  were  issued  against  the  public  policy  and  in  violation  of  the 
Constitution  of  the  United  States,  are  illegal  and  void,  and  can- 
not be  received  in  payment  of  taxes.19  While  the  courts  declared 
that  it  was  impossible  to  state  by  exact  definitions  what  acts  of 
such  government  were  valid  and  what  invalid,  still,  it  was 
conceded  that  acts  necessary  to  peace  and  good  order  among 
citizens,  such  as  those  sanctioning  and  protecting  marriage  and 
the  domestic  relations,  governing  the  course  of  descents,  regulat- 

16  Dewing  v.  Perclicaris,  6  Otto,  193,  Foote,  27  Ohio  St.  600,  22  Am.  Eep. 
24  L.  ed.  654;   Central  R.  etc.  Co.  v.  340;   Harlan  v.  State,  41  Miss.  566; 
Ward,  37  Ga.  515.     See,  also,  United  Hood  v.  Maxwell,  1  W.  Va.  219. 
States    v.    One    Thousand    Five    Hun-  1S  Thomas  v.  City  of  Eichmond,  12 
dred  Bales  Cotton,  27  Fed.  Gas.  No.  Wall.  349,  20  L.  ed.  453. 

15,958.  19  Taylor  v.  Thomas,  22  Wall.  479, 

17  Hickman  v.   Jones,   9  Wall.   197,  22   L.    ed.    789.     See,    also,   Evans   v. 
19   L.    ed.    551.     And    see    as    to    the  Eichmond,  Chase  (U.  S.),  551,  8  Fed. 
nullity    of     ordinances     of     secession,  Cas.  No.  4570;   Huntington  v.  Texas, 
Keppel  v.   Petersburg   E.   Co.,   Chase,  16  Wall.  411,  21  L.  ed.  316;  Hatch  v. 
167,  14  Fed.   Cas..  No.   7722;   United  Burroughs,  1  Woods   (U.  S.),  439,  11 
States   v.   Cathcart,   1   Bond,   556,   25  Fed.    Cas.    No.    6203;    Perdicaris    v. 
Fed.   Cas.   No.   14,756;    Shortridge   v.  Charleston  Gaslight  Co.,  Chase  (U.  S.), 
Macon,  Chase,  136,  22  Fed.  Cas.  No.  435,  19  Fed.  Cas.  No.  10,974;   Isaacs 
12,812;  Penn  v.  Tollison,  26  Ark.  545;  v.  Eichmond,  90  Va.  30,  17  S.  E.  760; 
Hawkins    v.    Filkins,    24    Ark.    286;  Eand  v.  State,  65  N.  C.  194,   6  Am. 
Scruggs   v.    Huntsville,   45   Ala.    222;  Eep.  741;  Mississippi  Cent.  E.  Co.  v. 
Nosely  v.  Tuthill,  45  Ala.  621,  6  Am.  State,    46    Miss.    157;     Buchanan    v. 
Eep.   710;    Ex  parte  Norton,  44  Ala.  Smith,    43    Miss.    91;     Sequestration 
180;   Eay  v.  Thompson,  43  Ala.  434,  Cases,  30  Tex.  689,  98  Am.  Dec.  494. 
94     Am.     Dec.     696;     Pennywitt     v. 


§    34]  PROHIBITION  ON  STATES.  32 

ing  the  conveyance  and  transfer,  real  and  personal,  of  property, 
providing  remedies  for  injuries  to  person  and  estate,  and  similar 
acts  which  would  be  valid  if  proceeding  from  a  lawful  govern- 
ment, should  in  general  be.  considered  valid  as  though  they  had 
emanated  from  an  actual,  though  unlawful,  government.  On  the 
other  hand,  acts  in  furtherance  or  support  of  rebellion,  or  in- 
tended to  defeat  the  just  rights  of  citizens,  must  be  regarded,  in 
general,  as  invalid  and  void.20 

§  34.  Judgments  of  courts,  when  void. — Where  legislation  of 
the  revolutionary  legislatures  enacted  for  the  purpose  of  aiding 
the  Rebellion,  or  which  deprived  citizens  of  the  United  States 
of  their  just  rights,  was  effectuated  by  judgments  and  decrees  of 
courts,  such  judgments  and  decrees  are  void,  and  no  subsequent 
legislation  can  validate  them.21  After  the  state  of  Virginia  had 
passed  an  ordinance  of  secession,  a  law  was  enacted  which  de- 
clared that  after  its  enactment,  no  execution,  except  in  favor  of 
the  state  and  against  nonresidents,  should  be  issued,  and  that  no 
sales  should  be  made  under  deeds  of  trust  or  decrees  without  the 
consent  of  the  parties  interested,  until  otherwise  provided  by 
law.  This  clause  that  no  executions  should  issue  or  sales  be  made 
was,  the  court  decided,  clearly  in  conflict  with  the  contract  clause 
of  the  Constitution.  The  exception  in  the  statute  as  to  executions 
in  favor  of  the  commonwealth  and  against  nonresidents  obviously 
contemplated  the  confiscation  of  the  latter  as  a  war  measure, 
and  was  invalid  by  reason  of  the  treasonable  motive  and  purpose 
which  prompted  its  authors  to  pass  it.22  Although  the  states 
were  in  rebellion,  only  such  acts  as  impaired  or  tended  to  impair 
the  national  supremacy  were  invalid,  but  all  others  that  tended 
to  preserve  order,  protect  property  or  maintain  police  regulations 
were  valid.23 

20  Texas  v.  White,  7  Wall.  733,  19  453;  United  States  v.  Home  Ins.  Co., 
L.  ed.  227.  22  Wall.  103,  22  L.  ed.  816;   Sprott 

21  Van    Epps    v.    Walsh,    1    Woods  v.    United    States,    20    Wall.    459,    22 
(U.    S.),     598,     28     Fed.     Gas.     No.  L.    ed.    371;    Wallace    v.     State,     33 
16,850.  Tex.    445;    Evans  v.  Eichmond,  Chase 

22  Daniels  v.  Tearney,  102  U.  S.  419,  (U.  S.),  551,  8  Fed.  Cas.  No.  4570; 
26  L.  ed.  187.  Cook  v.  Oliver,  1  Woods  (U.  S.),  437, 

23  Horn  v.  Lockhart,  17  Wall.  580,  6    Fed.    Cas.    No.    3164;    Chappell   v. 
21  L.  ed.  657.     And  see,  also,  Thomas  Doe,  49  Ala.  155;  Calhoun  v.  Kellogg, 
v.  Kichmond,  12  Wall.  357,  20  L.  ed.  41   Ga.   240;    Buchanan  v.   Smith,  43 


33  NO  GENERAL  RULE  TO  BE  APPLIED.  [§§    35-37 

§  35.  No  general  rule  to  be  applied.— Between  the  extremes 
of  what  was  unlawful  and  what  was  lawful  there  was  a  large 
variety  of  transactions,  to  which  no  general  rule  can  be  applied. 
Such  transactions  between  individuals  as  would  have  been  bind- 
ing and  legal  under  ordinary  circumstances  cannot  be  declared 
illegal  and  of  no  obligation  because  they  were  done  in  conform- 
ity with  laws  enacted  by  a  usurping  authority.  But  such  trans- 
actions of  the  usurping  power  as  prejudiced  the  interests  of  cit- 
izens of  other  states  excluded  by  the  insurrection  and  by  the 
policy  of  the  national  government  from  the  care  and  protection 
of  their  own  interests  within  the  states  in  rebellion  cannot  be  sus- 
tained by  the  courts.24  In  other  words,  when  the  decision  of  the 
court  could  not,  from  the  nature  of  the  case,  be  influenced  by  the 
rebellion  in  existence,  the  judgment  of  the  court  is  binding  on  the 
parties  who  w^ere  actually  within  the  jurisdiction  of  the  court.25 

§  36.  State  cannot  negotiate  for  extradition. — Under  this 
clause  of  the  Constitution  a  state  cannot  enter  into  any  negotiation 
with  a  foreign  power  on  the  subject  of  the  extradition  of  those 
charged  with  crime.  This  is  included  within  the  treaty-making 
power  of  the  federal  government  and  the  corresponding  power  of 
appointing  and  receiving  ambassadors  and  other  public  ministers. 
There  is  no  reason  why  states  should  in  their  own  name  make 
a  demand  upon  foreign  nations  for  the  surrender  of  fugitives  from 
justice;  nor  should  they  enter  into  those  relations  with  such 
nations  as  the  extradition  of  fugitives  necessarily  implies.26  In 
1872  an  act  of  the  legislature  of  the  state  of  New  York,  author- 
izing the  rendition  to  foreign  states  of  fugitives  from  justice, 
was  held  to  be  in  conflict  with  the  Constitution  of  the  United 
States.27 

§  37.  Holmes  case. — The  power  of  a  state  to  surrender  a  fugi- 
tive from  justice  came  before  the  supreme  court  of  the  United 

Miss.    90;    Hill   v.    Boylan,    40   Miss.  25  Cook  v.  Oliver,  1  Woods  (U.  S.), 

618;  Morgan  v.  Keenan,  1  S.  C.  327;  437,  6  Fed.  Gas.  No.  3164. 

Prince  William  School  Board  v.  Stu-  26  United    States    v.    Eauscher,    119 

art,   80  Va.   81;    Frierson  v.   Presby-  U.  S.  407,  7  Sup.  Ct.  Eep.  234,  30  L. 

terian  Church,  7  Heisk.   (Tenn.)   705.  ed.    425. 

24  Keppel    v.    Petersburg    E.     Co.,  2T  People  v.  Curtis,  50  N.  Y.  321,  10 

Chase  (U.  S.),  167,  14  Fed.  Cas.  No.  Am.  Eep.  483. 
7722. 

Treaties — 3 


§    37]  PROHIBITION  ON  STATES.  34 

States  in  Holmes  v.  Jennison,28  in  1840.  George  Holmes,  a  nat- 
uralized citizen  of  the  United  States,  who  was  charged  with 
having  committed  murder  in  Lower  Canada,  was  confined  in 
Vermont  under  a  warrant  of  arrest  issued  by  the  governor  of 
that  state,  directing  the  sheriff  of  one  of  the  counties  to  convey 
and  deliver  him  to  the  agent  of  Canada,  "or  to  such  person  or 
persons  as  by  the  laws  of  said  province  may  be  authorized  to 
receive  the  same,  at  some  convenient  place  on  the  confines  of  this 
state  and  the  said  Province  of  Lower  Canada,  to  the  end  that  he. 
the  said  George  Holmes,  may  be  thence  conveyed  to  the  said 
District  of  Quebec,  and  be  there  dealt  with  as  to  law  and  justice 
appertains. ' '  At  that  time  no  extradition  treaty  existed  between 
the  United  States  and  Canada,  and  hence  the  President  declined 
to  act,  alleging  a  want  of  power.  Holmes  secured  a  writ  of 
habeas  corpus  from  the  supreme  court  of  Vermont,  and  in  his 
return  to  the  writ  the  sheriff  stated  that  he  detained  him  under 
an  order  from  the  governor,  commanding  him,  the  sheriff,  to 
deliver  the  prisoner  up  to  the  authorities  of  Lower  Canada.  The 
supreme  court  of  that  state  held  the  return  to  be  sufficient. 
Holmes  then  prosecuted  a  writ  of  error  to  the  supreme  court  of 
the  United  States.  In  this  proceeding  two  questions  were  pre- 
sented to  the  court:  First,  whether  a  writ  of  error  would  lie 
from  the  supreme  court  of  the  United  States  to  the  supreme  court 
of  the  state ;  and  second,  whether  the  judgment  of  the  state  court 
was  right.  The  case  was  heard  before  eight  judges  of  the  federal 
supreme  court,  who,  on  the  first  of  these  questions,  equally  di- 
vided, thus  preventing  an  authoritative  decision  upon  the  prin- 
cipal question.  Chief  Justice  Taney,  in  his  opinion,  upheld  the 
appellate  jurisdiction  of  the  supreme  court  of  the  United  States, 
and  declared  against  the  right  attempted  to  be  exercised  by  the 
governor  of  Vermont,  and  his  opinion  was  concurred  in  by  Jus- 
tices Story,  McLean  and  Wayne.  Separate  opinions,  in  which 
Justice  Baldwin  joined,  were  delivered  by  Justices  Thompson,  Bar- 
bour  and  Catron,  in  which  the  power  of  the  supreme  court  of 
the  United  States  to  revise  the  judgment  of  the  supreme  court 
of  Vermont  was  denied,  but  in  which  any  clear  opinion  upon 
the  power  of  the  authorities  of  the  state  of  Vermont,  executive 
or  judicial,  to  deliver  Holmes  to  the  government  of  Canada  was 

28  14  Pet.  540,  10  L.  ed.  579. 


35  TREATIES   NOW   GOVERN.  [§    38 

not  expressed.  Upon  the  return  of  the  case  to  the  supreme 
court  of  Vermont,  Holmes  was  discharged,  the  chief  justice  of 
that  court  saying:  "I  am  authorized  by  my  brethren,  to  say  that 
on  an  examination  of  this  case,  as  decided  by  the  Supreme  Court 
of  the  United  States,  they  think,  if  the  return  had  been  as  it  now 
is,  a  majority  of  that  court  would  have  decided  that  Holmes  was 
entitled  to  his  discharge,  and  that  the  opinion  of  a  majority  of 
the  Supreme  Court  of  the  United  States  was  also  adverse  to  the 
exercise  of  the  power  in  question  by  any  of  the  separate  states 
of  the  Union."29 

§  38.  Treaties  now  govern. — The  supreme  court  of  the  United 
States  sustained,  later,  the  opinion  of  Chief  Justice  Taney,  that 
the  power  exercised  by  the  governor  of  Vermont  was  a  part  of 
the  foreign  intercourse  of  this  country  conferred  upon  the 
federal  government,  but  said:  "Fortunately,  this  question,  with 
others,  which  might  arise  in  the  absence  of  treaties  or  Acts  of 
Congress,  on  the  subject,  is  now  of  very  little  importance,  since, 
with  nearly  all  the  nations  of  the  world  with  whom  our  relations 
are  such  that  fugitives  from  justice  may  be  found  within  their 
dominions  or  within  ours,  we  have  treaties  which  govern  the 
rights  and  conduct  of  the  parties  in  such  cases.  These  treaties  are 
also  supplemented  by  Acts  of  Congress,  and  both  are  in  their 
nature  exclusive. ' ' 30 

29  Ex  parte  Holmes,  12  Vt.  631.  U.   S.   407,   7   Sup.  Ct.  Bep.   234,   30 

30  United    States    v.    Rauscher,    119       L.  ed.  425. 


39]  COMPACTS   BETWEEN   STATES.  36 


CHAPTER  III. 

COMPACTS   BETWEEN   STATES. 

§  39.  Clause  as  to  compact  with  other  states. 

§  40.  Nature  of  compacts  that  may  be  made  by  states. 

§  41.  Extent  and  meaning  of  clause. 

§  42.  To  what  compacts  does  the  Constitution  apply. 

§  43.  Boundaries  between  two  states. 

§  44.  Controversies  at  time  of  adoption  of  Constitution. 

§  45.  Boundary  between  South  Dakota  and  Nebraska. 

§  46.  Construing   compacts  between   two   states. 

§  47.  Disputed  boundary  between  United  States  and  state. 

§  48.  Suits  by  state  to  recover  penalties. 

§  49.  Approval  of  Congress  implied  from  subsequent  legislation. 

§  50.  Creation  of  mutual  estoppel. 

§  51.  Contract  of  state  to  exempt  property  from  taxation. 

§  52.  Subsequent  statutes  directing  taxation  of  such  property. 

§  53.  Compacts  relating  to  property. 

§  39.  Clause  as  to  compacts  with  other  states. — Another  clause 
of  the  Constitution  prohibiting  a  state  from  making  a  compact 
or  agreement  with  another  state  or  with  a  foreign  power  is  the 
following:  "No  state  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops,  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  state,  or  with 
a  foreign  power,  or  engage  in  war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  admit  of  no  delay. ' ' 1  This  clause, 
as  originally  reported  by  the  Committee  on  Detail,  was  num- 
bered Article  XIII,  and  road:  "No  state,  without  the  consent  of 
the  legislature  of  the  United  States,  shall  emit  bills  of  credit,  nor 
make  anything  but  specie  a  tender  in  payment  of  debts;  nor  lay 
imposts  or  duties  on  imports;  nor  keep  troops  or  ships  of  war 
in  time  of  peace ;  nor  enter  into  any  agreement  or  compact  with 
another  state,  or  with  any  foreign  power;  nor  engage  in  any 
war,  unless  it  shall  be  actually  invaded  by  enemies,  or  the  dan- 
ger of  invasion  be  so  imminent  as  not  to  admit  of  a  delay  until 
the  legislature  of  the  United  States  can  be  consulted. ' ' 

1  Const.,  art.  I,  sec.  10,  cl.  3. 


37  NATURE  OF  COMPACTS  THAT  MAY  BE  MADE  BY  STATES.       [§    40 

The  provisions  as  to  bills  of  credit  and  tender  were  transferred 
to  the  first  clause  of  the  section,  and  finally,  after  the  Committee 
on  Style  had  reported,  the  convention  remodeled  the  clause  and 
adopted  it  in  its  present  form. 

§  40.  Nature  of  compacts  that  may  be  made  by  states.— While 
it  may  be  impossible  to  state  with  absolute  accuracy  what  com- 
pacts or  agreements  may  be  made  by  the  states  individually,  yet 
it  is  clear  that  the  inhibition  upon  the  power  of  the  states  is 
aimed  at  the  formation  of  any  combination  having  a  tendency 
to  augment  the  political  power  in  the  states  which  may  diminish 
or  interfere  with  the  supremacy  of  the  general  government. 
Judge  Story,  in  commenting  upon  this  clause  of  the  Constitution, 
after  referring  to  the  prohibition  against  a  state  entering  into 
treaties,  alliances,  or  confederations,  and  its  power,  with  the 
consent  of  Congress,  to  enter  into  an  agreement  or  compact  with 
another  state  or  with  a  foreign  power,  observes:  "What  precise 
distinction  is  here  intended  to  be  taken  between  treaties,  agree- 
ments and  compacts,  is  nowhere  explained,  and  has  never  as  yet 
been  subjected  to  any  exact  judicial,  or  other  examination.  A 
learned  commentator,  however,  supposes  that  the  former  ordinar- 
ily relate  to  subjects  of  great  national  magnitude  and  importance, 
and  are  often  perpetual,  or  for  a  great  length  of  time;  but  that 
the  latter  relate  to  transitory  or  local  concerns,  or  such  as  cannot 
possibly  affect  any  other  interests  but  those  of  the  parties.  But 
this  is  at  best  a  very  loose  and  unsatisfactory  exposition,  leaving 
the  whole  matter  open  to  the  most  latitudinarian  construction. 
What  are  subjects  of  great  national  magnitude  and  importance? 
Why, may  not  a  compact  or  agreement  between  states  be  per- 
petual? If  it  may  not,  what  shall  be  its  duration?  Are  not 
treaties  often  made  for  short  periods,  and  upon  questions  of  local 
interest,  and  for  temporary  objects?"2  He  then  remarks  that 
the  language  of  the  clause,  preventing  treaties,  alliances  or  con- 
federations, may  plausibly  be  interpreted  from  the  terms  used; 
and  "upon  the  ground  that  the  sense  of  each  is  best  known  by 
its  association  (noscitur  a  sociis)  to  apply  to  treaties  of  a  political 
character;  such  as  treaties  of  alliance  for  purposes  of  peace  and 
war;  and  treaties  of  confederation,  in  which  the  parties  are 

2  2  Stoiy  on  Constitution,  sec.   1402,    citing  1    Tucker's    Blackstone's  Com- 
mentaries, App.  310. 


§    41]  COMPACTS  BETWEEN   STATES.  38 

leagued  for  mutual  government,  political  co-operation,  and  the 
exercise  of  political  sovereignty,  or  conferring  internal  political 
jurisdiction,  or  external  political  dependence,  or  general  com- 
mercial privileges.  The  latter  clause,  ' compacts  and  agreements,' 
might  then  very  properly  apply  to  such  as  regarded  what  might 
be  deemed  mere  private  rights  of  sovereignty;  such  as  questions 
of  boundary;  interests  in  land  situated  in  the  territory  of  each 
other ;  and  other  internal  regulations  for  the  mutual  comfort  and 
convenience  of  states,  bordering  on  each  other. ' ' 3 

§  41.  Extent  and  meaning  of  clause. — In  an  original  suit  in 
the  supreme  court  of  the  United  States  to  establish  by  judicial 
decree  the  true  boundary  line  between  the  states  of  Virginia  and 
Tennessee,  and  in  which  the  boundary  line  as  established  by  the 
compact  of  1803  was  determined  to  be  the  true  boundary  line, 
Mr.  Justice  Field  had  occasion  to  consider  the  extent  and  mean- 
ing of  the  clause  that  no  state  shall,  without  the  consent  of 
Congress,  among  other  things,  ' '  enter  into  any  agreement  or  com- 
pact with  another  state  or  with  a  foreign  power."  He  put  the 
proposition  in  the  form  of  a  question,  "Is  the  agreement  made 
without  the  consent  of  Congress  between  Virginia  and  Tennessee, 
to  appoint  commissioners  to  run  and  mark  the  boundary  line  be- 
tween them,  within  the  prohibition  of  the  clause  ? ' '  and  then  pro- 
ceeded: 

"The  terms  'agreement'  or  'compact'  taken  by  themselves  are 
sufficiently  comprehensive  to  embrace  all  forms  of  stipulation, 
written  or  verbal,  and  relating  to  all  kinds  of  subjects;  to  those 
to  which  the  United  States  can  have  no  possible  objection  or 
have  any  interest  in  interfering  with,  as  well  as  to  those  which 
may  tend  to  increase  and  build  up  the  political  influence  of  the 
contracting  states,  so  as  to  encroach  upon  or  impair  the  supremacy 
of  the  United  States  or  interfere  with  their  rightful  management 
of  particular  subjects  placed  under  their  entire  control. 

"There  are  many  matters  upon  which  different  states  may 
agree  that  can  in  no  respect  concern  the  United  States.  If,  for 
instance,  Virginia  should  come  into  possession  and  ownership  of 
a  small  parcel  of  land  in  New  York  which  the  latter  state  might 
desire  to  acquire  as  a  site  for  a  public  building,  it  would  hardly 

8  2  Story  on  Constitution,  sec.  M03. 


39  TO  WHAT  COMPACTS  DOES  THE  CONSTITUTION  APPLY.  [§    42 

be  deemed  essential  for  the  latter  state  to  obtain  the  consent  of 
Congress  before  it  could  make  a  valid  agreement  with  Virginia 
for  the  purchase  of  the  land.  If  Massachusetts,  in  forwarding  its 
exhibits  to  the  World's  Fair  at  Chicago,  should  desire  to  trans- 
port them  a  part  of  the  distance  over  the  Erie  Canal,  it  would 
hardly  be  deemed  essential  for  that  state  to  obtain  the  consent  of 
Congress  before  it  could  contract  with  New  York  for  the  trans- 
portation of  the  exhibit  through  that  state  in  that  way.  If  the 
bordering  line  of  two  states  should  cross  some  malarious  and 
disease  producing  district,  there  could  be  no  possible  reason,  on 
any  conceivable  public  grounds,  to  obtain  the  consent  of  Con- 
gress for  the  bordering  states  to  agree  to  unite  in  draining  the 
district,  and  thus  remove  the  cause  of  disease.  So  in  case  of 
threatened  invasion  of  cholera,  plague,  or  other  causes  of  sickness 
and  death,  it  would  be  the  height  of  absurdity  to  hold  that  the 
threatened  states  could  not  unite  in  providing  means  to  prevent 
and  repel  the  invasion  of  the  pestilence  without  obtaining  the 
consent  of  Congress,  which  might  not  be  at  the  time  in  session. ' ' 4 

§  42.     To  what    compacts    does  the  Constitution  apply. — He 

then  asked,  if  the  terms  "compact"  or  "agreement"  do  not  apply 
to  every  possible  compact  or  agreement  between  one  state  and 
another,  for  the  validity  of  which  the  consent  of  Congress  must 
be  obtained,  to  what  compacts  or  agreements  does  the  Constitu- 
tion apply,  and  stated  that  the  answer  would  depend  upon  the 
object  of  the  constitutional  provision  and  the  construction  of  the 
terms  "agreement"  and  "compact"  with  reference  to  it.  The 
prohibition  is  directed  against  any  combination  increasing  the 
political  power  of  the  states  by  which  the  supremacy  of  the 
United  States  might  be  endangered.  He  then  continued : 

"Compacts  or  agreements — and  we  do  not  perceive  any  differ- 
ence in  the  meaning,  except  that  the  word  *  compact'  is  generally 
used  with  reference  to  more  formal  and  serious  engagements  than 
is  usually  implied  in  the  term  ' agreement' — cover  all  stipulations 
affecting  the  conduct  or  claims  of  the  parties.  The  mere  selec- 
tion of  parties  to  run  and  designate  the  boundary  line  between 
two  states,  or  to  designate  what  line  should  be  run,  of  itself  im- 
ports no  agreement  to  accept  the  line  run  by  them,  and  such 

4  State  of  Virginia  v.  State  of  Tennessee,  148  U.  S.  518,  13  Sup.  Ct.  Eep. 
728,  37  L.  ed.  537. 


§    42]  COMPACTS   BETWEEN   STATES.  40 

action  of  itself  does  not  come  within  the  prohibition.  Nor  does 
a  legislative  declaration,  following  such  line,  that  it  is  correct, 
and  shall  thereafter  be  deemed  the  true  and  established  line,- 
import  by  itself  a  contract  or  agreement  with  the  adjoining  state. 
It  is  a  legislative  declaration  which  the  state  and  individuals 
affected  by  the  recognized  boundary  line  may  invoke  against  the 
state  as  an  admission,  but  not  as  a  compact  or  agreement.  The 
legislative  declaration  will  take  the  form  of  an  agreement  or  com- 
pact when  it  recites  some  consideration  for  it  from  the  other 
party  affected  by  it,  for  example,  as  made  upon  a  similar  declara- 
tion of  the  border  or  contracting  state.  The  mutual  declarations 
may  then  be  reasonably  treated  as  made  upon  mutual  considera- 
tions. The  compact  or  agreement  will  then  be  within  the  pro- 
hibition of  the  Constitution  or  without  it,  according  as  the  estab- 
lishment of  the  boundary  line  may  lead  or  not  to  the  increase 
of  the  political  power  or  influence  of  the  states  affected,  and 
thus  encroach  or  n6t  upon  the  full  and  free  exercise  of  federal 
authority.  If  the  boundary  established  is  so  run  as  to  cut  off  an 
important  and  valuable  portion  of  a  state,  the  political  power  of 
the  state  enlarged  would  be  affected  by  the  settlement  of  the 
boundary ;  and  to  an  agreement  for  the  running  of  such  a  bound- 
ary or  rather  for  its  adoption  afterward,  the  consent  of  Congress 
may  well  be  required.  But  the  running  of  a  boundary  may  have 
no  effect  upon  the  political  influence  of  either  state ;  it  may 
simply  serve  to  mark  and  define  that  which  actually  existed 
before,  but  was  undefined  and  unmarked.  In  that  case  the 
agreement  for  the  running  of  the  line,  or  its  actual  survey,  would 
in  no  respect  displace  the  relation  of  either  of  the  states  to  the  gen- 
eral government.  There  was,  therefore,  no  compact  or  agreement 
between  the  states  in  this  case  which  required,  for  its  validity, 
the  consent  of  Congress,  within  the  meaning  of  the  Constitution, 
until  they  had  passed  upon  the  report  of  the  commissioners,  rati- 
fied their  action,  and  mutually  declared  the  boundary  established 
by  them  to  be  the  true  and  real  boundary  between  the  states. 
Such  ratification  was  mutually  made  by  each  state  in  considera- 
tion of  the  ratification  of  the  other."5 

5  State  of  Virginia  v.  State  of  Tennessee,  148  U.  S.  518,  13  Sup.  Ct.  Eep. 
728,  37  L.  ed.  537. 


41  BOUNDARIES  BETWEEN  TWO  STATES.  [§    43 

§  43.  Boundaries  between  two  states. — The  supreme  court  of 
the  United  States  has  original  jurisdiction  of  questions  of  bound- 
ary between  two  states  of  the  Union.6  Under  the  Articles  of  Con- 
federation Congress  was  made  "the  last  resort  on  appeal  in  all 
disputes  and  differences  now  subsisting  or  that  hereafter  may 
arise  between  two  or  more  states  concerning  boundary,  jurisdic- 
tion or  any  other  cause  whatever/'  and  it  was  provided,  for  the 
exercise  of  such  jurisdiction,  that  "whenever  the  legislative  or 
executive  authority  or  lawful  agent  of  any  state  in  controversy 
with  another  shall  present  a  petition  to  Congress,  stating  the  mat- 
ter in  question  and  praying  for  a  hearing,  notice  thereof  shall  be 
given  by  order  of  Congress  to  the  legislative  or  executive  au- 
thority of  the  other  state  in  controversy,  and  a  day  assigned  for 
the  appearance  of  the  parties  by  their  lawful  agents,  who  shall 
then  be  directed  to  appoint,  by  joint  consent,  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determining  the  mat- 
ter in  question;  but  if  they  cannot  agree,  Congress  shall  name 
three  persons  out  of  each  of  the  United  States,  and  from  the  list 
of  such  persons,  each  party  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced  to  thir- 
teen; and  from  that  number  not  less  than  seven,  nor  more  than 
nine  names,  as  Congress  shall  direct,  shall  in  the  presence  of  Con- 
gress be  drawn  out,  and  the  persons  whose  names  shall  be  so 
drawn,  or  any  five  of  them,  shall  be  commissioners  or  judges,  to 
hear  and  finally  determine  the  controversy,  so  always  as  a  major 
part  of  the  judges  who  shall  hear  the  cause  shall  agree  in  the 
determination;  and  if  either  party  shall  neglect  to  attend  at  the 
day  appointed,  without  showing  reasons,  which  Congress  shall 
adjudge  sufficient,  or  being  present  shall  refuse  to  strike,  the  Con- 
gress shall  proceed  to  nominate  three  persons  out  of  each  State, 
and  the  Secretary  of  Congress  shall  strike  in  behalf  of  such  party 
absent  or  refusing ;  and  the  judgment  and  sentence  of  the  court 
to  be  appointed,  in  the  manner  before  prescribed,  shall  be  final 
and  conclusive;  and  if  any  of  the  parties  shall  refuse  to  submit 
to  the  authority  of  such  court,  or  to  appear  or  defend  their  claim 
or  cause,  the  court  shall  nevertheless  proceed  to  pronounce  sen- 
tence, or  judgment,  which  shall  in  like  manner  be  final  and  de- 
cisive, the  judgment  or  sentence  and  other  proceedings  being  in 

6  Virginia  v.  West  Virginia,  11  Wall  39,  20  L.  ed.  67. 


§§    44-46]  COMPACTS  BETWEEN  STATES.  42 

either  case  transmitted  to  Congress,  and  lodged  among  the  acts 
of  Congress  for  the  securities  of  the  parties  concerned."7 

§  44.  Controversies  at  time  of  adoption  of  Constitution.— 
When  the  Constitution  was  adopted,  there  were  controversies  be- 
tween eleven  states  regarding  boundaries,  which  had  continued 
from  the  first  settlement  of  the  colonies.8  "The  necessity  for  the 
creation  of  some  tribunal  for  the  settlement  of  these  and  like 
controversies  that  might  arise,  under  the  new  government  to  be 
formed,  must,  therefore,  have  been  perceived  by  the  framers  of 
the  Constitution,  and,  consequently,  among  the  controversies  to 
which  the  judicial  power  of  the  United  States  was  extended  by 
the  Constitution,  we  find  those  between  two  or  more  states. 
And  that  a  controversy  between  two  or  more  states,  in  respect  to 
boundary,  is  one  to  which,  under  the  Constitution,  such  judicial 
power  extends,  is  no  longer  an  open  question  in  this  court. ' ' 9 

§  45.  Boundary  between  South  Dakota  and  Nebraska. — Com- 
missioners were  appointed  by  the  states  of  South  Dakota  and 
Nebraska,  respectively,  for  the  purpose  of  settling  the  boundary 
line  between  them;  and  the  legislature  of  each  state  adopted, 
subject  to  the  approval  of  Congress,  the  boundary  line  so  estab- 
lished. The  governors  of  these  states,  as  authorized  by  the  acts 
of  the  legislature,  signed  in  behalf  of  their  respective  states  a 
compact,  fixing  a  certain  line  as  a  boundary.  Congress  by  an 
act  approved  July  24,  1897,  enacted:  "That  the  consent  of  the 
Congress  of  the  United  States  is  hereby  given  to  the  said  com- 
pact, and  all  its  declarations  are  hereby  confirmed. ' ' 10 

§  46.  Construing  compacts  between  two  states. — The  jurisdic- 
tion of  the  supreme  court  of  the  United  States  of  questions  of 

7  Articles     of     Confederation,     art.  15  L.  ed.  *81;   Alabama  v.   Georgia, 
IX.     Provision  was  made  that  no  state  64  U.   S.    (23  How.)    505,   16  L.   ed. 
should   be    deprived   of   territory   for  556;  Virginia  v.  West  Virginia,  78  U. 
the  benefit  of  the  United  States.  S.   (11  Wall.)  39,  20  L.  ed.  67;  Mis- 

8  Ehode  Island  v.  Massachusetts,  12  souri    v.    Kentucky,    78    U.    S.     (11 
Pet.  657,  9  L.  ed.  1233,  1260.  Wall.)  395,  20  L.  ed.  116;  Indiana  v. 

9  United    States   v.    Texas,    143    U.  Kentucky,   136  U.   S.  479,  34  L.   ed. 
S.  640,  12  Sup.  Ct.  Rep.  488,  36  L.  ed.  329;    Nebraska    v.    Iowa,    143    U.    S. 
291 ;  New  Jersey  v.  New  York,  30  U.  359,  36  L.  ed.  186. 

S.  (5  Pet.)  284,  8  L.  ed.  127;  Florida          10  30  Stats,  at  Large,  214. 
v.  Georgia,  58  U.  S.   (17  How.)   478, 


43     DISPUTED  BOUNDARY  BETWEEN  UNITED  STATES  AND  A  STATE.      [  §  47 

boundary  between  two  states  is  not  curtailed,  because  the  decision 
of  the  question  requires  the  court  to  examine  and  construe  com- 
pacts or  agreements  between  those  states,  or  because  such  de- 
cision may  affect  the  territorial  limits  of  the  political  jurisdiction 
and  sovereignty  of  the  states.11  A  question  arose  as  to  the  right 
of  West  Virginia,  after  its  separation  from  Virginia,  to  juris- 
diction over  three  counties,  and  it  was  held  that  its  right  could 
only  be  maintained  by  a  valid  agreement  between  the  two  states, 
and  that  the  consent  of  Congress  was  essential  to  the  validity  of 
such  agreement.  It  was  agreed,  however,  between  these  states 
that  these  counties  should  become  a  part  of  West  Virginia,  sub- 
ject to  the  sole  condition  that  the  voters  of  these  counties  should 
consent.  The  admission  of  West  Virginia  as  a  state  was  con- 
sented to  by  Congress,  with  the  contingent  boundaries  provided 
for  in  its  Constitution,  and  it  was  held  that  the  action  of  the 
governor  of  Virginia  upon  the  vote  of  such  counties  to  become  a 
part  of  West  Virginia  was,  as  between  the  two  states,  conclu- 


§  47.    Disputed  boundary  between  United  States  and  a  state. — 

While  the  jurisdiction  of  the  supreme  court  of  the  United  States 
to  determine  a  disputed  boundary  between  two  states  is  clear, 
the  question  arose  whether  that  court  could  take  cognizance  of  an 
original  suit  brought  by  the  United  States  against  a  state  to  de- 
termine the  boundary  between  one  of  the  territories  and  such 
state.  It  was  contended  that  such  jurisdiction  did  not  exist,  and 
that  the  only  manner  in  which  such  a  dispute  could  be  deter- 
mined was  by  an  agreement  in  some  form  between  the  state  and 
the  federal  government.  But  it  was  decided  that  the  court  did 
have  jurisdiction  to  hear  and  determine  the  controversy,  and  that 
a  suit  in  equity  was  the  appropriate  remedy.13 

In  an  earlier  case,  an  action  had  been  brought  by  the  United 
States  against  the  state  of  North  Carolina  upon  certain  bonds  is- 
sued by  that  state.  An  appearance  was  made  in  behalf  of  the 
state,  the  case  heard  upon  its  merits  and  the  state  had  judg- 

11  Virginia  v.  West  Virginia,  78  U.  I3  United   States  v.   Texas,   143   U. 
S.  (11  Wall.)  39,  20  L.  ed.  67.  S.  640,  12  Sup.  Ct.  Rep.  488,  36  L. 

12  Virginia  v.  West  Virginia,  78  U.  ed.  291.         ; 
S.   (11  Wall.)   39,  20  L.  ed.  67. 


§    48]  COMPACTS  BETWEEN  STATES.  44 

ment.  No  point  was  made  as  to  the  jurisdiction  of  the  court,  and 
the  opinion  was  silent  upon  the  subject.14  It  was  said,  however, 
in  a  later  case,  that  the  question  of  jurisdiction  did  not  escape 
the  attention  of  the  court,  and  that  the  judgment  would  not 
have  been  rendered  except  upon  the  theory  that  jurisdiction  of 
a  suit  by  the  United  States  against  a  state  is  vested  in  the  su- 
preme court  of  the  United  States.15 

§  48.  Suits  by  state  to  recover  penalties. — It  does  not  follow 
that  because  a  state  is  the  plaintiff  that  the  controversy  is  one  in 
which  the  supreme  court  of  the  United  States  is  empowered  to 
grant  relief  against  another  state  or  its  citizens,  for  it  was  not 
intended  to  confer  upon  the  courts  of  the  United  States  jurisdic- 
tion of  a  suit  by  one  state  of  such  a  nature  that,  on  the  settled 
principles  of  public  and  international  law,  it  could  not  be  enter- 
tained by  the  judiciary  of  the  other  state.  It  is  a  well-recognized 
rule  that  the  courts  of  one  country  do  not  execute  the  penal  laws 
of  another.  This  principle  applies  not  only  to  prosecutions  and 
sentences  for  crimes  and  misdemeanors,  but  to  all  suits  in  favor 
of  a  state  to  recover  pecuniary  penalties  foe  violations  of  stat- 
utes, for  the  protection  of  its  revenue  or  other  municipal  laws. 
The  nature  of  the  cause  of  action  is  not  altered  by  a  judgment 
recovered  upon  it,  and,  hence,  when  a  judgment  is  presented  to 
a  court  for  enforcement,  it  may  ascertain  whether  the  claim  is  one 
that  it  is  authorized  to  enforce.  The  supreme  court  of  the  United 
States  has  no  jurisdiction  over  an  original  action  brought  to  com- 
pel an  insurance  corporation  of  one  state  to  pay  to  another  state 
the  amount  of  a  judgment  recovered  by  such  state  for  a  penalty 
imposed  by  its  own  statute  upon  such  corporation  for  doing  busi- 
ness within  the  state,  without  having  first  given  to  the  proper 
officer  of  the  state  a  statement  of  its  property  and  business  which 
the  statute  required.16 

14  United  States  v.  North  Carolina,  L.   ed.   242.     Said  Mr.   Justice  Gray, 
136  U.  S.  211,  10  Sup.  Ct.  Eep.  920,  in  delivering  the  opinion  of  the  court: 
34  L.  ed.  336.  ' '  The   statute    of    Wisconsin,    under 

15  United   States  v.   Texas,   143   U.  which  the  state   recovered  in  one  of 
S.  640,  12  Sup.   Ct.  Eep.  488,  36  L.  her    own    courts,    the    judgment    now 
ed.    291.  and  here  sued  on,  was  in  the  strictest 

16  Wisconsin  v.  Pelican  Ins.  Co.,  127  sense  a  penal  statute,  imposing  a  pen- 
U.  S.  288,  8  Sup.  Ct.  Kep.   1373,  32  alty  upon  any  insurance  company  of 


45 


APPROVAL  OF  CONGRESS  IMPLIED  FROM  LEGISLATION.          [§    49 


§  49.  Approval  of  Congress  implied  from  subsequent  legisla- 
tion.— While  there  may  be  no  direct  legislation  on  the  subject,  a 
compact  entered  into  between  two  states  as  to  the  boundary  line 
between  them  may  be  fairly  implied  from  subsequent  legislation 
and  proceedings.  Even  if  a  boundary  line  between  two  states 
varies  in  some  particulars  from  the  courses  given  in  the  original 
grant,  still  if  it  has  been  run  out,  located  and  marked  upon  the 
earth,  and  the  states  have  for  a  long  course  of  years  recognized 
and  acquiesced  in  the  line,  it  becomes  conclusive.17  Mr.  Justice 
Field,  delivering  the  opinion  of  the  court,  said:  "The  Constitu- 
tion does  not  state  when  the  consent  shall  be  given,  whether  it 
shall  precede  or  may  follow  the  compact  made,  or  whether  it 
shall  be  express  or  may  be  implied.  In  many  cases  the  consent 


another  state,  doing  business  in  the 
state  of  Wisconsin  without  having  de- 
posited with  the  proper  officer  of  the 
state  a  full  statement  of  its  property 
and  business  during  the  previous  year. 
Wis.  Kev.  Stats.,  sec.  1920.  The  cause 
of  action  was  not  any  private  injury, 
but  solely  the  offense  committed 
against  the  state  by  violating  her  law. 
The  prosecution  was  in  the  name  of 
the  state,  and  the  whole  penalty  when 
recovered  would  accrue  to  the  state, 
and  be  paid,  one-half  into  her  treas- 
ury, and  the  other  half  to  her  insur- 
ance commissioner,  who  pays  all  ex- 
penses of  prosecuting  for  and  collect- 
ing such  forfeitures.  Wis.  Stats. 
1S85,  c.  395.  The  real  nature  of 
the  case  is  not  affected  by  the  forms 
provided  by  the  law  of  the  state  for 
the  punishment  of  the  offense.  It 
is  immaterial  whether  by  the  law  of 
Wisconsin,  the  prosecution  must  be 
by  indictment  or  by  action;  or 
whether  under  that  law,  a  judgment 
there  obtained  for  the  penalty  might 
be  enforced  by  execution,  by  scire 
facias  or  by  a  new  suit.  In  whatever 
form  the  state  pursues  her  right  to 
punish  the  offense  against  her  sover- 
eignty, every  step  of  the  proceeding 


tends  to  one  end,  the  compelling 
the  offender  to  pay  a  pecuniary  fine 
by  way  of  punishment  for  the  offense. 
This  court,  therefore,  cannot  entertain 
an  original  action  to  compel  the  de- 
fendant to  pay  to  the  state  of  Wash- 
ington a  sum  of  money  in  satisfaction 
of  the  judgment  for  that  fine.  The 
original  jurisdiction  of  this  court  is 
conferred  by  the  Constitution,  with- 
out limit  of  the  amount  in  controversy, 
and  Congress  has  never  imposed  (if 
indeed  it  could  impose)  any  such 
limit.  If  this  court  has  original  jur- 
isdiction of  the  present  case,  it  must 
follow  that  any  action  upon  a  judg- 
ment obtained  by  a  state  in  her  own 
courts  against  a  citizen  of  another 
state  for  the  recovery  of  any  sum  of 
money,  however  small,  by  way  of  a 
fine  for  any  offense,  however  petty, 
against  her  laws,  could  be  brought  in 
the  first  instance  in  the  Supreme  Court 
of  the  United  States.  That  cannot 
have  been  the  intention  of  the  Conven- 
tion in  framing,  or  of  the  people  in 
adopting  the  Federal  Constitution. ' ' 
17  State  of  Virginia  v.  State  of  Ten- 
nessee, 148  U.  S.  518,  13  Sup.  Ct.  Rep. 
728,  37  L.  ed.  537. 


§    50]  COMPACTS  BETWEEN  STATES.  46 

will  usually  precede  the  compact  or  agreement,  as  where  it  is 
to  lay  a  duty  of  tonnage,  to  keep  troops  or  ships  of  war  in  time 
of  peace,  or  to  engage  in  war.  But  where  the  agreement  relates 
to  a  matter  which  could  not  well  be  considered  until  its  nature 
is  fully  developed,  it  is  not  perceived  why  the  consent  may  not 
be  subsequently  given.  Story  says  that  the  consent  may  be  im- 
plied, and  is  always  to  be  implied,  when  Congress  adopts  the  par- 
ticular act  by  sanctioning  its  objects  and  aiding  in  enforcing 
them;  and  observes  that  where  a  state  is  admitted  into  the 
Union,  notoriously  upon  a  compact  made  between  it  and  the  state 
of  which  it  previously  composed  a  part,  there  the  act  of  Con- 
gress, admitting  such  state  into  the  Union  is  an  implied  consent 
to  the  terms  of  the  compact.  Knowledge  by  Congress  of  the 
boundaries  of  a  state,  and  of  its  political  subdivisions,  may  rea- 
sonably be  presumed,  as  much  of  its  legislation  is  affected  by 
them,  such  as  relate  to  the  territorial  jurisdiction  of  the  courts 
of  the  United  States,  the  extent  of  their  collection  districts,  and 
of  districts  in  which  process,  civil  and  criminal,  of  their  courts 
may  be  served  and  enforced."18 

§  50.  Creation  of  mutual  estoppel. — Where  a  boundary  line 
has  been  recognized  by  two  states  for  a  long  term  of  years,  it  be- 
comes the  established  line  between  them  on  the  principle  of 
mutual  estoppel.  But  if  a  boundary  line  has  been  actually  run 
and  established,  it  cannot  be  changed  by  the  action  of  the  state 
authorities  in  recognition  of  another  line,  unless  both  states  have 
continuously  recognized  such  line  for  such  a  length  of  time  as 
to  create  a  mutual  estoppel  and  to  operate  as  an  adoption  of  such 
line  as  the  true  and  established  boundary.19 

If  two  states  have  by  acts  of  their  legislatures  confirmed  the 
boundary  line  between  them  as  run  and  marked  by  a  joint  com- 
mission, such  line  must,  in  a  suit  between  private  persons,  be  ac- 
cepted by  the  courts  as  the  true  and  ancient  boundary,  although 

18  State  of  Virginia  v.  State  of  Ten-  Tennessee.     The  court  adjudged  that 

nessee,    148    U.    S.   518,    13    Sup.    Ct.  the   boundary   line    as    established   in 

Kep.   728,  37  L.   ed.  537.     That  was  1803  by  compact  was  the  true  bound- 

an  original  suit  in  the  supreme  court  ary  line. 

of  the  United  States,  to  establish  by  "  Belding  v.  Hebard,  103  Fed.  542, 

judicial  decree  the  true  boundary  line  43  C.  C.  A.  296. 
between   the    states   of   Virginia   and 


47     CONTRACT  OF  STATE  TO  EXEMPT  PROPERTY  FROM  TAXATION.      [§    51 

a  different  line  between  two  points  may  more  accurately  con- 
form to  a  general  call.20 

§  51.     Contract  of  state  to  exempt  property  from  taxation. — 

The  provisions  of  the  Constitution  prohibiting  a  state,  without 
the  consent  of  Congress,  entering  into  any  agreement  or  compact 
with  another  state  came  before  the  supreme  court  for  considera- 
tion in  a  case  where  the  validity  of  a  contract  between  a  state 
and  a  railroad  company  exempting  the  latter  from  taxes  in  con- 
sideration of  a  percentage  of  its  gross  earnings  was  involved. 
The  Constitution  of  the  state  of  Minnesota  contains  clauses  pro- 
viding that  all  taxes  to  be  raised  in  the  state  shall  be  as  nearly 
equal  as  may  be,  and  that  all  property  on  which  taxes  are  to  be 
levied  shall  have  a  cash  valuation,  and  shall  be  uniform  through- 
out the  state;  and  also  declaring  that  laws  shall  be  passed  tax- 
ing all  real  and  personal  property  according  to  its  true  value  in 
money.21  Congress  granted  certain  lands  to  the  state  to  aid  in 
building  a  railroad,  and  provided  "that  the  said  lands  hereby 
granted,  when  patented  to  said  state,  shall  be  subject  to  the  dis- 
posal of  said  state  for  the  purposes  aforesaid  and  no  other;  and 
the  said  railroad  shall  be  and  remain  a  public  highway  for  the 
use  of  the  government  of  the  United  States  free  from  all  toll  or 
other  charge,  for  the  transportation  of  any  property  or  troops  of 
the  United  States."22  The  legislature  of  that  state  passed  an 
act  accepting  the  grant  and  transferring  the  lands  to  a  railroad 
company  to  aid  it  in  the  construction  of  the  railroad,  and  pro- 
viding that,  in  consideration  of  this  grant,  the  company  should, 
after  the  completion  of  its  railroad,  pay  into  the  treasury  three 
pe*  cent  of  its  gross  earnings,  "which  sum  shall  be  in  lieu  and 
in  full  of  all  taxation  and  assessments  upon  the  said  railroad, 
and  its  appurtenances  and  appendages,  and  all  other  property  of 
said  company,  real,  personal  and  mixed,  including  the  lands 
hereby  and  heretofore  granted  to  said  company,  or  so  intended 
to  be  granted. ' '  But  the  lands  were  to  be  taxed  when  they  were 
sold  and  conveyed  to  purchasers.  An  amendatory  act  was  passed, 
making  some  alterations,  and  providing  that  when  its  provisions 
should  be  accepted,  "the  same  shall  become  obligatory  upon  the 

20  Stevenson  v.  Fain,  116  Fed.  147,  22  13  Stats,  at  Large,  64;  14  Stats. 
53  C.  C.  A.  467.                                              at  Large,  93. 

21  Minn.  Const.,  art.  9,  sees.  1,  3. 


§    52]  COMPACTS  BETWEEN  STATES.  48 

state  and  upon  said  company. ' '  The  railroad  company  continued 
for  many  years  to  pay  taxes  in  accordance  with  this  contract, 
and  no  attempt  was  made  by  the  state  to  levy  taxes  upon  its  lands. 

§  52.  Subsequent  statutes  directing  taxation  of  such  property. 
An  amendment,  years  after  the  making  of  this  contract,  was 
adopted  to  the  Constitution  of  the  state,  declaring  that  any  law 
providing  for  the  repeal  or  amendment  of  any  law  similar  to 
that  in  question  should,  before  it  became  effective,  be  submitted 
to  a  vote  of  the  people  and  ratified  by  them.  Finally,  a  law  was 
passed  by  the  legislature  and  adopted  by  the  people,  by  the 
terms  of  which  all  lands  granted  to  any  railroad  company  were 
to  be  assessed  and  taxed  as  other  lands  in  the  state,  but  the  pro- 
vision requiring  the  payment  of  a  percentage  of  its  gross  earn- 
ings into  the  treasury  was  retained. 

Under  the  provisions  of  this  act  the  state  proceeded  to  levy 
taxes  upon  the  lands  of  a  railroad  company  with  which  such 
contract  was  made,  and  the  validity  of  such  taxation  was  the 
question  involved.  The  decision  of  the  supreme  court  of 
Minnesota  was  adverse  to  the  railroad  company.23  The  supreme 
court  of  the  United  States  held  that  the  power  reserved  in  the 
constitutional  amendment  to  alter,  amend  or  repeal  the  statute 
exempting  the  railroad  company  from  all  other  taxes  in  payment 
of  the  percentage  of  its  earnings  could  not  be  exercised  so  as 
to  continue  in  full  the  obligation  as  to  the  payment  of  the  per- 
centage, and  to  deny  at  the  same  time  to  the  company  the  ex- 
emption given  by  the  contract.24  This  contract,  it  was  said  by 
Mr.  Justice  Brewer,  was  not  in  violation  of  the  provisions  of  the 
Constitution  of  Minnesota,  because  it  was  made  by  the  state  as  a 
trustee  of  the  public  lands  granted  to  it  in  aid  of  railroads,  and 
as  the  state  had  accepted  the  property  as  a  trustee,  it  was  not 
forced  to  diminish  the  full  performance  of  the  trust  by  subject- 
ing the  lands  to  taxation  if  in  its  opinion  as  trustee  the  trans- 
fer of  the  land  subject  to  a  limited  taxation  would  more  ef- 
fectually accomplish  the  trust.25 

23  State  v.   Stearns,   72  Minn.   200,  25  Stearns  v.  Minnesota,  179  U.  S. 
75  N.  W.  210.  223,  21  Sup.  Ct.  Kep.   73,  45  L.   ed. 

24  Stearns  v.  Minnesota,  179  U.  S.  162.     The     supreme     court     of     the 
223,  21  Sup.  Ct.  Kep.  73,  45  L.  ed.  162.  United  States  possesses  paramount  au- 


49  COMPACTS  RELATING  TO  PROPERTY.  [§    53 

§  53.  Compacts  relating  to  property.— Mr.  Justice  Brewer, 
after  referring  to  the  enabling  act  and  the  Constitution  of  the 
state,  said  that  it  was  evident  that  they,  in  form  at  least,  made  a 
compact  between  the  United  States  and  the  state.  "In  an  in- 
quiry as  to  the  validity  of  such  a  compact,"  said  he,  "this  dis- 
tinction must  at  the  outset  be  noticed.  There  may  be  agree- 
ments or  compacts  attempted  to  be  entered  into  between  two 
states,  or  between  a  state  and  the  nation,  in  reference  to  political 
rights  and  obligations,  and  there  may  be  those  solely  in  reference 
to  property  belonging  to  one  or  the  other.  That  different  con- 
siderations may  underlie  the  question  as  to  the  validity  of  these 
two  kinds  of  compacts  or  agreements  is  obvious.  It  has  often 
been  said  that  a  state  admitted  into  the  Union  enters  therein  in 
full  equality  with  all  the  others,  and  such  equality  may  forbid 
any  agreement  or  compact  limiting  or  qualifying  political  rights 
and  obligations;  whereas,  on  the  other  hand,  a  mere  agreement 
in  reference  to  property  involves  no  question  of  equality  of 
status,  but  only  if  the  power  of  a  state  to  deal  with  the  nation 
or  with  any  other  state  in  reference  to  such  property.  The  case 
before  us  is  one  involving  simply  an  agreement  as  to  property 
between  a  state  and  the  nation.  That  a  state  and  the  nation  are 
competent  to  enter  into  an  agreement  of  such  a  nature  with  one 
another  has  been  affirmed  in  past  decisions  of  this  court,  and 
that  they  have  been  frequently  made  in  the  admission  of  new 
states  is  a  matter  of  history. ' '  He  said  that  if  the  right  of  agree- 
ment between  one  another  belongs  to  the  several  states  except  as 

thority  when  reviewing  the  final  judg-  Sup.    Ct.    Rep.    265,    29   L.    ed.    510; 

ment  of  a  state  court  which  upholds  a  Vicksburg  S.  &  P.  R.  Co.  v.  Dennis, 

state  statute  alleged  to  violate  the  con-  116  U.  S.  665,  6  Sup.  Ct.  Rep.  625,  20 

tract  clause  of  the  Constitution,  to  de-  L.  ed.  770;  New  Orleans  Water  Works 

termine  the  existence  or  nonexistence  Co.  v.  Louisiana  Sugar  Ref.  Co.,  125 

of  the  contract  set  up,  and  whether  U.  S.  18,  8  Sup.  Ct.  Rep.  741,  31  L.  ed. 

the  obligation  has  been  impaired  by  607;    Bryan  v.   Kentucky  Conference 

the    statute.     Douglas    v.    Kentucky,  M.  E.  Church  etc.,  151  U.  S.  639,  14 

168  U.  S.  488,  8  Sup.  Ct.  Rep.  199,  Sup.    Ct.    Rep.    465,    38   L.    ed.    297; 

42  L.   ed.  553;   Ohio  Life  Ins.  &  T.  Mobile  &  O.  R.  Co.  v.  Tennessee,  153 

Co.  v.  Debolt,  16  How.  416,  14  L.  ed.  U.  S.  486,  14  Sup.  Ct.  Rep.  968,  38  L. 

997;  Wright  v.  Nagle,  101  U.  S.  791,  ed.   793;   Bacon  v.   Texas,  163  U.  S. 

25  L.  ed.  923;  Louisville  Gas  Co.  v.  207,  16  Sup.  Ct.  Rep.  1023,  41  L.  ed. 

Citizens'   Gas  Co.,   115  U.   S.   683,   6  132. 
Treaties — 4 


§    53]  COMPACTS  BETWEEN   STATES. 

limited  by  the  constitutional  provisions  requiring  the  consent 
Congress,  "equally  true  is  it  that  a  state  may  make  a  compact 
with  all  the  states,  constituting  as  one  body  the  nation,  pos- 
sessed of  general  right  of  sovereignty  and  represented  by  Con- 
gress."26 

28  Stearns  v.  Minnesota,  179  U.  S.  223,  21  Sup.  Ct.  Eep.  73,  45  L.  ed.  162. 


51  POWER    TO    MAKE    TREATIES.  [§    54 


CHAPTER  IV. 

MAKING    OF    TEEATIES. 

§  54.  Power  to  make  treaties. 

§  55.  Difference  of  opinion  as  to  where  power  should  be  vested. 

§  56.  Vehement  attack  on  treaty  clauses. 

§  57.  Objections  to  lodging  power  with  President. 

§  58.  Differences   between   treaty-making   power   in   England   and  in   United 

States. 

§  59.  Other  objections. 

§  60.  Prerogative  of  the  Executive. 

§  61.  Treaty  inchoate  until  ratified. 

§  62.  Eatification  of  treaties  by  Senate. 

§  63.  Eejection  of  treaties  by  Senate. 

§  64.  Views  of  Mr.  Clay. 

§  65.  Adding  declaration. 

§  66.  Proviso  adopted  by  Senate. 

§  67.  Amendment  by  declaration  of  interpretation. 

§  68.  Views  of  Department  of  State. 

§  69.  Senate  resolution  controlling  meaning  of  treaty. 

§  70.  Executive  agreements. 

§  71.  Protocols  within  Executive  authority. 

§  72.  Instances. 

§  73.  Suspension  of  tariff  act  by  President. 

§  7^4.  No  discretion  in  President. 

§  75.  Nonintercourse  act. 

§  76.  Suspension  and  operation  of  acts  dependent  upon  President. 

§  77.  Suspension  of  act  prohibiting  imports. 

§  78.  Same  subject — Continued. 

§  79.  Importation  of  neat  cattle. 

§  80.  Products  of  Cuba  and  Porto  Eico. 

§  81.  Appropriation  of  money. 

§  82.  Moral  obligation. 

§  83.  Alaska  purchase. 

§  84.  Porto  Eico  as  foreign  territory. 

§  85.  Treaty  dependent  upon  legislative  action. 

§  54.  Power  to  make  treaties. — The  Constitution  places  the 
power  to  make  treaties  in  the  hands  of  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  if  two-thirds  of  the  sena- 
tors present  concur.1  The  clause  on  this  subject  found  its  origin  in 
the  Committee  on  Detail,  who  in  their  first  report  placed  the  treaty- 

1  Const.,  art.  II,  sec.   2,  cl.  2. 


§§    55,    56]  MAKING  OF   TREATIES.  52 

making  power  in  the  Senate  by  a  clause  reading:  "The  Senate  of 
the  United  States  shall  have  power  to  make  treaties,  and  appoint 
embassadors,  and  judges  of  the  Supreme  Court."  When  the 
convention  took  up  this  clause  for  consideration,  an  amendment 
was  moved  by  Gouverneur  Morris  that  "no  treaty  shall  be  bind- 
ing on  the  United  States  which  is  not  ratified  by  law,"  but  after 
some  debate  the  entire  clause  was  reported  back  to  the  Commit- 
tee on  Detail.  As  this  committee  did  not  return  a  further  re- 
port, the  matter  went  to  the  Committee  on  Unfinished  Portions, 
who,  when  they  reported,  vested  the  power  in  the  President  by 
and  with  the  advice  and  consent  of  the  Senate. 

§  55.  Difference  of  opinion  as  to  where  power  should  be 
vested. — The  language  of  the  report  of  the  Committee  on  Un- 
finished Portions  was:  "The  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  have  power  to  make  treaties. 
....  But  no  treaty  shall  be  made  without  the  consent  of  two- 
thirds  of  the  members  present."  An  amendment  was  offered  in 
the  convention  to  add  the  words  "and  House  of  Representatives" 
after  "Senate,"  but  it  failed  to  carry.  Much  difference  of  opin- 
ion was  manifested  on  the  provision  that  required  two-thirds  of 
the  senators  present  to  ratify  a  treaty,  some  of  the  members  ad- 
vocating an  amendment  whereby  treaties  of  peace  could  be  rati- 
fied by  a  majority  and  others  wishing  to  eliminate  completely 
the  requirement  of  a  two-thirds  vote.  It  was  also  urged  that 
"no  treaty  should  be  made  without  the  consent  of  two-thirds  of 
all  the  members  of  the  Senate,"  and  also  that  "no  treaty  shall 
be  made  without  a  majority  of  the  whole  number  of  the  Senate"; 
and  still  again,  that  previous  notice  to  members  and  with  a  rea- 
sonable time  to  attend,  should  be  given.  All  these  propositions 
were  defeated,  and  the  Committee  on  Style  finally  reported  it 
in  the  form  in  which  it  now  appears  in  the  Constitution.2 

§  56.  Vehement  attack  on  treaty  clauses. — Judge  Story  said 
that  the  plan  of  the  Constitution  was  happily  adapted  to  se- 
cure all  just  objects  in  relation  to  foreign  negotiations,  while 
admitting  that  few  parts  of  the  Constitution  were  assailed  with 

2  5  Elliot,  524-527;  The  Federalist  No.  75;  Journal  of  Convention,  225, 
326,  342. 


53 


VEHEMENT  ATTACK  ON  TREATY  CLAUSES. 


[§    56 


more  vehemence.  * '  In  the  formation  of  treaties, ' '  he  said, ' '  secrecy 
and  immediate  dispatch  are  generally  requisite,  and  sometimes 
absolutely  indispensable.  Intelligence  may  often  be  obtained, 
and  measures  matured  in  secrecy  which  never  could  be  done  un- 
less in  the  faith  and  confidence  of  profound  secrecy.  No  man  at 
all  acquainted  with  diplomacy,  but  must  have  felt  that  the  sue- 
cess  of  negotiations  as  often  depends  upon  their  being  unknown 
by  the  public  as  upon  their  justice  or  their  policy.  Men  will 
assume  responsibility  in  private,  and  communicate  information, 
and  express  opinions,  which  they  would  feel  the  greatest  re- 
pugnance publicly  to  avow;  and  measures  may  be  defeated  by 
the  intrigues  and  management  of  foreign  powers,  if  they  suspect 
them  to  be  in  progress,  and  understand  their  precise  nature  and 
extent.  In  this  view  the  executive  department  is  a  far  better 
depositary  of  the  power  than  Congress  would  be.  The  delays 
incident  to  a  large  assembly ;  the  differences  of  opinion ;  the  time 
consumed  in  debate;  and  the  utter  impossibility  of  secrecy,  all 
combine  to  render  them  unfitted  for  the  purposes  of  diplo- 
macy."3 

3  2  Story  on  Constitution,  sec.  1510. 

{ i  The  same  difficulties  would  occur 
from  confiding  it  exclusively  to  either 
branch  of  Congress.  Each  is  too 
numerous  for  prompt  and  immediate 
action,  and  secrecy.  The  matters  in 
negotiations,  which  usually  require 
these  qualities  in  the  highest  degree, 
are  the  preparatory  and  auxiliary 
measures;  and  which  are  to  be  seized 
upon,  as  it  were,  in  an  instant.  The 
president  could  easily  arrange  them. 
But  the  House,  or  the  Senate,  if  in 
session,  could  not  act,  until  after 
great  delays;  and  in  the  recess  could 
not  act  at  all.  To  have  intrusted  the 
power  to  either  would  have  been  to 
relinquish  the  benefits  of  the  consti- 
tutional agency  of  the  president  in 
the  conduct  of  foreign  negotiations. 
It  is  true  that  the  branch  so  intrusted 
might  have  the  option  to  employ  the 
president  in  that  capacity;  but  they 
would  also  have  the  option  of  re- 


fraining from  it;  and  it  cannot  be 
disguised,  that  pique,  or  cabal,  or  per- 
sonal or  political  hostility,  might  in- 
duce them  to  keep  their  pursuits  at  a 
distance  from  his  inspection  and  par- 
ticipation. Nor  could  it  be  expected, 
that  the  president,  as  a  mere  minis- 
terial agent  of  such  branch,  would 
enjoy  the  confidence  and  respect  of 
foreign  powers  to  the  same  extent  as 
he  would,  as  the  constitutional  repre- 
sentative of  the  nation  itself;  and 
his  interposition  would  of  course  have 
less  efficacy  and  weight. 

1 '  On  the  other  hand,  considering  the 
delicacy  and  extent  of  the  power,  it 
is  too  much  to  expect  that  a  free 
people  would  confide  to  a  single  mag- 
istrate, however  respectable,  the  sole 
authority  to  act  conclusively,  as  well 
as  exclusively,  upon  the  subject  of 
treaties.  In  England,  the  power  to 
make  treaties  is  exclusively  vested 
in  the  crown.  But  however  proper  it 


§§    57,    58]  MAKING  OF  TREATIES.  54 

§  57.  Objections  to  lodging  power  with  President. — It  was 
seriously  objected  that  the  vesting  of  the  treaty-making  power 
in  the  President  with  the  concurrence  of  two-thirds  of  the  sena- 
tors present  was  destructive  to  public  liberty  and  dangerous  to 
the  state.4 

Speaking  of  the  treaty-making  power,  the  Federalist  said: 
"The  essence  of  the  legislative  authority  is  to  enact  laws,  or  in 
other  words  to  prescribe  rules  for  the  regulation  of  society; 
while  the  execution  of  the  laws,  and  the  employment  of  the  com- 
mon strength,  either  for  this  purpose  or  for  the  common  defense, 
seems  to  comprise  all  the  functions  of  the  executive  magistrate. 
The  power  of  making  treaty  is  plainly  neither  the  one  nor  the 
other.  It  relates  neither  to  the  execution  of  the  subsisting  laws, 
nor  to  the  enaction  of  new  ones ;  and  still  less  to  an  exertion  of 
the  common  strength.  Its  objects  are  contracts  with  foreign  na- 
tions which  have  the  force  of  law,  but  derive  it  from  the  obli- 
gations of  good  faith.  They  are  not  rules  prescribed  by  the 
sovereign  to  the  subject,  but  agreements  between  sovereign  and 
sovereign."5 

§  58.  Differences  between  treaty-making  power  in  England 
and  United  States. — Again,  the  Federalist  points  out  the  differ- 
ences that  exist  between  the  treaty-making  power  in  England  and 
that  in  the  United  States,  asserting  that  the  King  of  Great  Britain 
is  in  all  foreign  transactions  the  sole  and  absolute  representative 
of  the  nation,  and  intimating  that  in  case  of  the  dissolution  of 
the  confederacy,  the  executives  of  the  several  states  might  be 
invested  with  the  prerogative  of  making  treaties.  It  asserted 
that  the  King  of  Great  Britain  could  of  his  own  accord  make 
treaties  of  peace,  commerce,  alliance,  and  of  every  other  descrip- 
tion. "It  has  been  insinuated  that  his  authority,  in  this  respect, 
is  not  conclusive;  and  that  his  conventions  with  foreign  powers 
are  subject  to  the  revision,  and  stand  in  need  of  the  ratification 

may  be  in  a  monarchy,   there  is  no  of    all    depositaries    of    power;    and 

American    statesman    but    must    feel  which,    experience   teaches   us,   is   the 

that  such  a  prerogative  in  an  Ameri-  best  security  against  the  abuse  of  it. ' ' 

can    president   would   be    inexpedient  2  Story  on  Constitution,   1511,  1512. 

and    dangerous.     It   would   be   incon-  4  2  Elliot's  Debates,  367-379. 

sistent     with     that    wholesome     jeal-  B  The  Federalist,  75. 
ousy  which  republics  ought  to  cherish 


55  OTHER  OBJECTIONS.  [§    59 

of  parliament.  But  I  believe  this  doctrine  was  never  heard  of 
till  it  was  broached  upon  the  present  occasion.  Every  jurist  of 
that  kingdom,  and  every  other  man  acquainted  with  its  con- 
stitution, knows,  as  an  established  fact,  that  the  prerogative  of 
making  treaties  exists  in  the  crown,  in  its  utmost  plenitude; 
and  that  the  compacts  entered  into  by  the  royal  authority  have 
the  most  complete  validity  and  perfection,  independent  of  any 
other  sanction.  The  parliament,  it  is  true,  is  sometimes  seen 
employing  itself  in  altering  the  existing  laws,  to  conform  them 
to  the  stipulations  in  a  new  treaty;  and  this  may  possibly  have 
given  birth  to  the  imagination,  that  its  co-operation  was  neces- 
sary to  the  obligatory  efficacy  of  the  treaty.  But  this  parlia- 
mentary interposition  proceeds  from  a  different  cause;  from  the 
necessity  of  adjusting  a  most  artificial  and  intricate  system  of 
revenue  and  commercial  laws  to  the  changes  made  in  them  by  the 
operation  of  the  treaty ;  and  of  adopting  new  provisions  and  pre- 
cautions to  the  new  state  of  things,  to  keep  the  machine  from 
running  into  disorder.  In  this  respect,  therefore,  there  is  no 
comparison  between  the  intended  power  of  the  President  and 
the  actual  power  of  the  British  sovereign.  The  one  can  per- 
form alone  what  the  other  can  only  do  with  the  concurrence  of  a 
branch  of  the  legislature.  It  must  be  admitted  that,  in  this  in- 
stance, the  power  of  the  federal  executive  would  exceed  that  of 
any  state  executive.  But  this  arises  naturally,  from  the  exclu- 
sive possession,  by  the  Union,  of  that  part  of  the  sovereign  power 
which  relates  to  treaties.  If  the  confederacy  were  to  be  dis- 
solved, it  would  become  a  question  whether  the  executives  of 
the  several  states  were  not  solely  invested  with  that  delicate  and 
important  prerogative."6 

§  59.  Other  objections. — Judge  Story  stated  that  one  ground 
of  objection  was  the  intermixture  of  executive  and  legislative 
powers,  it  being  contended  that  the  President  ought  alone  to 
possess  the  prerogative  of  concluding  treaties.  Another  objec- 
tion urged  was  the  small  number  of  the  persons  to  whom  the 
power  to  make  treaties  was  intrusted,  and  the  opinion  was  ex- 
pressed that  the  House  of  Representatives  should  have  a  voice, 
as  was  also  the  opinion  that  a  treaty  should  be  ratified  by  two- 

8  The  Federalist,  69. 


§    59]  MAKING  OF   TREATIES.  56 

thirds  of  all  the  members  of  the  Senate,  and  not  alone  by  two- 
thirds  of  those  present.  In  answer  to  the  objection  that  the 
power  ought  to  have  been  confined  exclusively  to  the  President, 
he  said  that  it  might  be  suggested,  "that,  however  safe  it  may 
be  in  governments,  where  the  executive  magistrate  is  an  hered- 
itary monarch,  to  commit  to  him  the  entire  power  of  making 
treaties,  it  would  be  utterly  unsafe  and  improper  to  intrust  that 
power  to  an  executive  magistrate  chosen  for  four  years.  It  has 
been  remarked,  and  is  unquestionably  true,  that  an  hereditary 
monarch,  though  often  the  oppressor  of  his  people,  has  personally 
too  much  at  stake  in  the  government  to  be  in  any  material  dan- 
ger of  corruption  by  foreign  powers,  so  as  to  surrender  any  im- 
portant rights  or  interests.  But  a  man,  raised  from  a  private 
station  to  the  rank  of  chief  magistrate  for  a  short  period,  hav- 
ing but  a  slender  or  moderate  fortune,  and  no  very  deep  stake 
in  the  society,  might  sometimes  be  under  temptations  to  sacrifice 
duty  to  interests,  which  it  would  require  great  virtue  to  with- 
stand. If  ambitious,  he  might  be  tempted  to  seek  his  own  ag- 
grandizement by  the  aid  of  a  foreign  power,  and  use  the  field  of 
negotiations  for  this  purpose.  If  avaricious,  he  might  make  his 
treachery  to  his  constituents  a  vendible  article  at  an  enormous 
price."7 

7  2  Story  on  Constitution,  sec.  1515.  the  senate,  chosen  by  the  states 
He  also  said:  "The  impropriety  through  the  voice  of  the  state  legis- 
of  delegating  the  power  exclusively  latures.  In  the  next  place,  the 
to  the  senate  has  been  already  suffi-  house  of  representatives  are  chosen 
ciently  considered.  And,  in  addition  for  two  7ears  Onl7;  and  the  internal 
to  what  has  been  already  urged  composition  of  the  body  is  constantly 
against  the  participation  of  the  house  changing,  so  as  to  admit  of  less  cer* 
of  representatives  in  it,  it  may  be  tainty  in  their  opinions  and  their 
remarked  that  the  house  of  repre-  measures,  than  would  naturally  belong 
sentatives  is  for  other  reasons  far  to  a  body  of  longer  duration.  In  the 
less  fit  than  the  senate  to  be  the  *ext  place,  the  house  of  representa- 
exclusive  depositary  of  the  power,  tives  is  far  more  numerous  than  the 
or  to  hold  it  in  conjunction  with  the  senate,  and  will  be  constantly  in- 
executive.  In  the  first  place,  it  is  creasing  in  numbers,  so  that  it  wiU 
a  popular  assembly,  chosen  immedi-  be  more  slow  in  its  movements,  and 
ately  from  the  people,  and  represent-  more  fluctuating  in  its  councils.  In 
ing  in  a  good  measure,  their  feelings  the  next  place,  the  senate  will  natur- 
and  local  interests;  and  it  will  on  this  ally  be  composed  of  persons  of  more 
account  be  more  likely  to  be  swayed  experience,  weight  of  character,  and 
by  such  feelings  and  interests  than  talents  than  the  members  of  the 


57 


PREROGATIVE  OF  THE  EXECUTIVE. 


[§  60 


§  60.  Prerogative  of  the  Executive.— The  courts  have  no  power 
to  interfere  with  the  negotiation  and  modification  of  treaties,  as 
such  is  the  prerogative  of  the  Executive.8  President  Washing- 
ton, in  a  special  message,  said:  "It  is  said  to  be  the  general  un- 
derstanding and  practice  of  nations,  as  a  check  on  the  mistakes 
and  indiscretions  of  ministers  or  commissioners,  not  to  consider 
any  treaty,  negotiated  and  signed  by  such  officers  as  final  and 
conclusive,  until  ratified  by  the  sovereign  or  government  from 
whom  they  derive  their  powers.  This  practice  has  been  adopted 
by  the  United  States  respecting  their  treaties  with  European  na- 
tions, and  I  am  inclined  to  think  that  it  would  be  advisable  to 
observe  it  in  the  conduct  of  our  treaties  with  the  Indians;  for, 
though  such  treaties,  being  on  their  part,  made  by  their  chiefs  or 
rulers,  need  not  be  ratified  by  them,  yet,  being  formed  on  our 
part  by  the  agency  of  subordinate  officers,  it  seems  to  be  both 
prudent  and  reasonable  that  their  acts  should  not  be  binding  on 
the  nation,  until  approved  and  ratified  by  the  government.  It 


house.  Accurate  knowledge  of  for- 
eign politics,  a  steady  and  systematic 
adherence  to  the  same  views,  nice 
and  uniform  sensibility  to  national 
character  as  well  as  secrecy,  decision, 
and  dispatch,  are  required  for  a  due 
execution  of  the  power  to  make 

treaties 

"Besides,  the  very  habits  of  busi- 
ness and  the  uniformity  and  regu- 
larity of  system,  acquired  by  a  long 
possession  of  office,  are  of  great 
concern  in  all  cases  of  this  sort.  The 
senators,  from  the  longer  duration  of 
their  office,  will  have  great  opportuni- 
ties of  extending  their  political  in- 
formation, and  of  rendering  their  ex- 
perience more  and  more  beneficial  to 
their  country.  The  members  are 
slowly  changed;  so  that  the  body  will 
at  all  times,  from  its  very  organiza- 
tion, comprehend  a  large  majority  of 
persons  who  have  been  engaged  for  a 
considerable  time  in  public  duties  and 


foreign  affairs.  If,  in  addition  to 
all  these  reasons,  it  is  considered  that 
in  the  senate  all  the  states  are  equally 
represented,  and  in  the  house  very 
unequally,  there  can  be  no  reasonable 
doubt,  that  the  senate  is  in  all  respects 
a  more  competent  and  more  suitable 
depositary  of  the  power  than  the 
house,  either  with  or  without  the  co- 
operation of  the  executive.  And  most 
of  the  reasoning  applies  with  equal 
force  to  any  participation  by  the 
house  in  the  treaty-making  functions. 
It  would  add  an  unwieldy  machinery 
to  all  foreign  operations,  and  retard 
if  not  wholly  prevent,  the  beneficial 
purposes  of  the  power":  2  Story  on 
Constitution,  1516,  1517. 

8  Frelingheysen  v.  Key,  110  U.  S. 
64,  3  Sup.  Ct.  Eep.  462,  28  L.  ed.  71; 
Great  West  Ins.  Co.  v.  United  States, 
19  Ct.  of  Cl.  206;  Angarica  de  la 
Kua  v.  Bayard,  4  Mackey,  310. 


§§    61,    62]  MAKING  OF  TREATIES.  58 

strikes  me  that  this  point  should  be  well  considered  and  settled, 
so  that  our  national  proceedings  in  this  respect  may  become  uni- 
form, and  be  directed  by  fixed  and  stable  principles."9 

§  61.  Treaty  inchoate  until  ratified. — Every  treaty  negotiated 
by  the  United  States  is  an  inchoate  compact  until  it  is  ratified, 
and  as  every  nation  has  knowledge  of  the  limitations  upon  the 
power  of  its  officers  to  conclude  treaties,  it  is  entirely  free  to 
withhold  its  own  ratification  until  it  has  knowledge  of  ratifica- 
tion on  the  part  of  the  United  States.  "In  the  full  powers  of 
European  governments  to  their  ministers,  the  sovereign  usually 
promises  to  ratify  that  which  his  minister  shall  conclude  in  his 
name ;  and  yet  if  the  minister  transcends  his  instructions,  though 
not  known  to  the  other  party,  the  sovereign  is  not  held  bound  to 
ratify  his  engagements.  Of  this  principle  Great  Britain  has 
once  availed  herself  in  her  negotiations  with  the  United  States. 
But  the  full  powers  of  our  ministers  abroad  are  necessarily  modi- 
fied by  the  provisions  of  our  Constitution,  and  promise  the  rati- 
fication of  treaties  signed  by  them,  only  in  the  event  of  their  re- 
ceiving the  constitutional  sanction  of  our  government."10  A 
payment  of  preliminary  installment  of  money  under  a  treaty 
providing  for  a  lease  of  foreign  property  does  not  obligate  the 
government  to  future  payments.11  A  treaty,  when  ratified,  re- 
lates back  to  the  time  of  its  signature,  as  a  ratification  is  noth- 
ing more  than  evidence  of  the  authority  under  which  the  minis- 
ter proceeded.12 

§  62.  Ratification  of  treaties  by  Senate. — As  a  treaty,  until 
sanctioned  by  the  constitutional  majority  of  the  Senate,  is  a 
mere  inchoate  and  not  a  consummated  compact,  the  other  power 

9  1    Kichardson's    Messages    (Sept.       ing  opinion  in  this  case  Mr.  Justice 
17,  1789),  61.  Thompson    said:    "A    government    is 

10  Mr.    Adams,    Secretary   of   State,  bound     to     perform     and    observe     a 
to  Mr.  Bush,  November  12,  1824,  MS.  treaty   made   by    its    minister,    unless 
Inst.  U.  S.  Ministers,  X,  215.  it  can  be  made  to  appear  that  he  has 

11  Mr.   Evarts,   Secretary   of   State,  exceeded  his  authority.     But  a  ratifi- 
to  Mr.  Delmonte,  February  19,  1880,  cation  is  an  acknowledgment  that  he 
MS.    Notes    to    Dominican    Kepublic,  was   authorized   to   make   the   treaty; 
1,  41.  and  if  so,  the  nation  is  bound  from 

12  United    States    v.    Arredondo,    6  the    time    the    treaty    is    made    and 
Pet.  758,  8  L.  ed.  547.     In  a  dissent-  signed. ' ' 


59  RATIFICATION   OF    TREATIES   BY   SENATE.  [§    62 

to  the  treaty  is  free  to  withhold  its  own  ratification  until  it  shall 
have  knowledge  of  the  ratification  of  the  treaty  on  the  part  of 
the  United  States.13  Owing  to  the  fact  that  before  a  treaty  can 
be  ratified,  the  action  of  the  Senate  must  be  had,  it  is  preferred 
that  the  exchange  of  ratifications  shall  be  effected  "as  soon  as 
possible,"  rather  than  within  a  time  specified.14 

At  first  the  President  met  the  Senate  personally,  but  the 
practice  became  unsatisfactory  and  was  abandoned.  Mr.  Grand- 
all,  speaking  of  the  practice,  says:  "In  reply  to  the  committee, 
appointed  by  the  Senate  August  6,  1789,  to  confer  with  the 
President  on  the  method  of  communication  between  the  Execu- 
tive and  the  Senate  respecting  treaties  and  nominations,  Presi- 
dent Washington  suggested  that  'In  all  matters  respecting 
treaties,  oral  communications  seem  indispensably  necessary,  be- 
cause in  these  a  variety  of  matters  are  contained,  all  of  which 
not  only  require  consideration,  but  some  may  undergo  much  dis- 
cussion to  do  which  by  written  communications  would  be  tedious 
without  being  satisfactory.'  The  report  of  the  committee,  based 
upon  this  suggestion,  resulted  in  the  adoption  by  the  Senate,  Au- 
gust 21st,  of  a  rule  regulating  the  manner  in  which  the  President 
should  meet  the  Senate,  either  in  the  Senate  chamber  or  in  such 
other  place  as  it  might  be  convened  by  him.  The  rule  had  just 
been  adopted  when  a  message  was  received  announcing  the  Presi- 
dent's intention  to  meet  the  Senate  the  next  day  'to  advise  with 
them  on  the  terms  of  the  treaty  to  be  negotiated  with  the  south- 
ern Indians.'  Following  also  the  practice  under  the  Articles  of 
Confederation  of  securing  prior  to  the  negotiation  of  Indian 
treaties  an  appropriation  to  defray  the  necessary  expense,  Presi- 
dent Washington  had,  on  August  7th,  suggested  by  special  mes- 
sage to  both  houses  the  necessity  of  negotiating  with  the  Indians 
in  the  southern  district,  and  the  expediency  of  appointing  com- 
missioners for  that  purpose.  The  House  bill  making  the  appro- 
priation was  approved  August  20th.  According  to  the  notification, 
the  President,  accompanied  by  General  Knox,  who,  although  not 
a  Cabinet  officer  at  the  time,  was  acquainted  with  Indian  af- 
fairs and  prepared  to  answer  questions,  appeared  in  the  Senate 
chamber.  After  listening  to  a  short  paper  containing  a  few  ex- 

13  Mr.   Adams,   Secretary  of   State,  14  Instructions    to    Diplomatic    Offi- 

to  Mr.  Bush,  November  12,  1884,  MS.       cers  of  the  United  States  (1897),  sec. 
Inst.  U.   S.  Ministers,  X,  215.  246,  p.  101. 


§    63]  MAKING  OF  TREATIES.  60 

planations,  the  Senate  was  called  upon  to  give  its  advice  by  an- 
swering yes  or  no  to  seven  questions.  This  it  seemed  unwilling 
to  do  without  having  first  examined  the  articles.  To  a  motion 
made  by  Robert  Morris,  to  refer  the  papers  to  a  special  commit- 
tee, a  Senator  well  objected  that  'No  council  ever  committed  any- 
thing.' The  President  added  that,  while  he  had  not  objection  to 
a  postponement,  he  did  not  understand  'the  matter  of  commit- 
ment,' that  it  would  defeat  every  purpose  of  his  meeting  the 
Senate.  The  questions  were  accordingly  postponed  until  Mon- 
day, at  which  time  they  were  settled  by  the  Executive  and  the 
Senate.  The  latter  maintained  its  co-ordinate  authority  by  a 
partial  consent  to  the  propositions. 

"Although  the  President  did  not  again  meet  the  Senate  in  per- 
son to  ask  its  advice,  he  continued  to  consult  it  by  message  prior 
to  the  opening  of  negotiations. ' ' 15 

§  63.  Rejection  of  treaties  by  Senate. — The  rejection  of  a 
treaty  by  the  Senate  indicates  no  discourtesy  to  the  government 
negotiating  the  treaty.  "The  United  States  can  enter  into  no 
treaty  without  the  advice  and  consent  of  the  Senate,  and  that 
advice  and  consent  to  be  intelligent  must  be  discriminating,  and 
their  refusal  can  be  no  subject  of  complaint,  and  give  no  occasion 
for  dissatisfaction  or  criticism."16 

15  Crandall's   Treaties,    Their  Mak-  1824,  with  Colombia  for  the  suppres- 
ing  and  Enforcement,  54,  56.  sion  of  the  African  slave  trade;  March 

16  Mr.  Fish,  Secretary  of  State,  to  6,    1835,    with   the    Swiss    Confedera- 
M¥.    Motley,    Minister    to    England,  tion;  April  12,  1844,  for  the  annexa- 
May  15,   1869,  Sen.  Ex.  Doc.   11,  41  tion    of    Texas;    December    14,    1859, 
Cong.  3  Sess.  2-5.  with  Mexico  relative  to  transits  and 

Says  Mr.  Crandall:  "Of  treaties  commerce;  March  5,  1860,  with  Spain 
rejected  by  the  Senate  through  a  for  the  settlement  of  claims;  May  21, 
failure  to  act  on  them,  or  outright,  1867,  with  Hawaii  for  commercial 
may  be  mentioned,  besides  the  vari-  reciprocity;  and  the  following  with 
ous  recent  treaties  for  commercial  Great  Britain;  January  14,  1869,  for 
reciprocity,  the  important  treaties  the  adjustment  of  outstanding  claims; 
signed  March  25,  1844,  with  the  Ger-  June  25,  1886,  for  the  extradition  of 
man  Zollverein;  July  20,  1855,  with  criminals;  February  15,  1888,  for  the 
Hawaii;  October  24,  1867,  with  Den-  regulation  of  the  fisheries;  and  Jan- 
mark  for  the  cession  of  the  islands  of  uary  11,  1897,  for  the  settlement  of 
St.  Thomas  and  St.  John;  November  disputes  by  arbitration."  Crandall's 
29,  1869,  for  the  annexation  of  the  Treaties,  Their  Making  and  Enforce- 
Dominican  Republic;  December  10,  ment  (1904),  71,  72. 


61 


EEJECTION  OF  TREATIES  BY  SENATE. 


[§  63 


Frequently  the  Senate  makes  amendments,  and  if  these  are  not 
adopted  by  the  other  party  to  the  treaty,  it,  of  course,  does  not 
become  operative.  For  instance,  a  treaty  was  signed  in  Lon- 
don in  1803  for  settling  the  northern  boundaries  of  the  United 
States,  and  the  Senate  approved  it  on  condition  that  a  clause 
should  be  stricken  out,  but  as  the  amendment  was  not  accepted 
by  the  British  government,  ratifications  were  not  exchanged.17 
In  another  instance  a  convention  for  suppressing  the  African 
slave  trade  was  signed  at  London  and  submitted  to  the  Senate  in 
1824.  The  Senate  approved  the  conventions  but  with  conditions 
which  Great  Britain  did  not  accept.18 


"  Mr.  Fish,  Secretary  of  State,  to 
Mr.  Motley,  Minister  to  England,  May 
15,  1869,  Sen.  Ex.  Doc.  11,  41  Cong. 
3  Sess.  4,  5;  1  Moore's  Int.  Arbitra- 
tions, 514;  5  Moore's  Int.  L.  Deg.  199. 

18  Mr.  Fish,  Secretary  of  State,  to 
Mr.  Motley,  Minister  to  England,  May 
15,  1869,  Sen.  Ex.  Doc.  11,  41  Cong., 
3  Sess.  4,  5;  5  Moore's  Int.  L.  D.  199, 
200.  Mr.  Clay,  Secretary  of  State,  re- 
ferring to  the  Senate's  amendment 
said :  l '  The  government  of  His  Brit- 
annic Majesty  is  well  acquainted  with 
the  provision  of  the  Constitution  of 
the  United  States,  by  which  the  Sen- 
ate is  a  component  part  of  the  treaty- 
making  power;  and  that  the  consent 
and  advice  of  that  branch  of  Con- 
gress are  indispensable  in  the  forma- 
tion of  all  treaties.  According  to  the 
practice  of  this  government,  the  Sen- 
ate is  not  ordinarily  consulted  in  the 
initiatory  state  of  a  negotiation,  but 
its  consent  and  advice  are  only  in- 
voked, after  a  treaty  is  concluded,  un- 
der the  direction  of  the  President, 
and  submitted  to  its  consideration. 
Each  of  the  two  branches  of  the 
treaty-making  authority  is  independ- 
ent of  the  other,  whilst  both  are  re- 
sponsible to  the  States  and  to  the 
people,  the  common  sources  of  their 
respective  powers.  It  results,  from 
this  organization,  that,  in  the  progress 


of  the  government,  instances  may 
sometimes  occur  of  a  difference  of 
opinion  between  the  Senate  and  the 
Executive  as  to  the  expediency  of  a 
projected  treaty,  of  which  the  rejec- 
tion of  the  Colombian  convention  af- 
fords an  example.  The  people  of  the 
United  States  have  justly  considered 
that,  if  there  be  any  inconveniences  in 
this  arrangement  of  their  executive 
powers,  those  inconveniences  are  more 
than  counterbalanced  by  the  greater 
security  of  their  interests,  which  is 
effected  by  the  mutual  checks  which 
are  thus  interposed.  But  it  is  not 
believed  that  there  are  any  incon- 
veniences to  foreign  powers  of  which 
they  can  with  propriety  complain. 
To  give  validity  to  any  treaty,  the 
consent  of  the  contracting  parties  is 
necessary.  As  to  the  mode  by  which 
that  consent  shall  be  expressed,  it 
must  necessarily  depend  with  each 
upon  its  own  peculiar  constitutional 
arrangement.  All  that  can  rightly 
be  demanded  in  treating  is  to  know 
the  contingencies  on  the  happening 
of  which  that  consent  is  to  be  re- 
garded as  sufficiently  testified.  This 
information  the  government  of  the 
United  States  has  always  communi- 
cated to  the  foreign  powers  with  which 
it  treats,  and  to  none  more  fully 
than  to  the  United  Kingdom  of  Great 


§    64]  MAKING  OF  TREATIES.  62 

"Not  usually  consulted  as  to  the  conduct  of  negotiations,  the 
Senate  has  freely  exercised  its  co-ordinate  authority  in  treaty- 
making  by  means  of  amendments.  Where  the  treaty  as  ne- 
gotiated is  not  entirely  acceptable  to  the  Senate,  it  is  the  prac- 
tice of  that  body,  if  it  gives  its  advice  and  consent  to  the  ratifica- 
tion, to  do  so  with  specific  amendments,  which  renders  unneces- 
sary the  resubmission  of  the  instrument  after  the  consent  of  the 
other  party  to  the  designated  changes  has  been  obtained.  (.But 
the  approval,  whether  qualified  or  unqualified,  of  the  treaty  by 
the  Senate  is  not  to  be  confused  with  the  act  of  ratification.  The 
latter  is  performed  by  the  President,  and  is  unconditional  even 
where  it  relates  to  a  treaty  which,  because_of  amendments  by  the 
Senate,  differs  from  the  one  first  signed.j  While  the  Senate's 
practice  of  amending  treaties  continues  to  meet  with  criticism 
by  foreign  writers,  it  would  not  be  contended  for  a  moment  that 
the  Senate  might  not  reject  in  toto,  or  withhold  action  altogether 
until  the  changes  which  it  might  indicate  by  resolution  or  other- 
wise had  been  negotiated.  So  far  as  it  affects  the  other  con- 
tracting party,  it  is  difficult  to  distinguish  the  latter  mode  from 
that  followed  by  the  United  States.  The  objection  usually  urged 
is,  that  the  amendments  are  made  by  persons  unfamiliar  with  the 
negotiations,  and  that  they  are  in  the  nature  of  an  ultimatum. 
The  proposed  treaty  is  not  infrequently  so  amended  as  to  be  un- 
acceptable to  the  other  power,  and  no  treaty  results."19 

§  64.  Views  of  Mr.  Clay.— The  Senate  in  1824  approved  a 
convention  for  the  suppression  of  the  African  slave  trade,  but 
added  conditions  which  Great  Britain  did  not  accept,  and  speak- 
ing of  the  amendments  made  by  the  Senate,  Mr.  Clay  said: 
"The  government  of  His  Britannic  Majesty  is  well  acquainted 

Britain  and  Ireland.     Nor  can  it  be  precede  the  other  in  the  act  of  ratifi- 

admitted  that  any  just  cause  of  com-  cation;  and  if,  after  a  treaty  be  rati- 

plaint  can  arise  out  of  the  rejection  fied  by  one  party,  a  ratification  of  it 

by  one  party  of  a  treaty  which  the  be   withheld   by   the   other,   it   merely 

other   has   previously   ratified.     When  shows   that   one  is,   and   the   other   is 

such  a  case  occurs,  it  only  proves  that  not,  willing  to  come  under  the  obliga- 

the    consent    of    both,    according    to  tions   of   the  proposed   treaty. ' '     Mr. 

the    constitutional    precautions    which  Clay  to  Mr.  Addington,  April  6,  1825, 

have   been   provided   for   manifesting  Am.   State  Papers  For.  Rel.,  V,  783. 

that  consent,  is  wanting  to  make  the  19  CrandalPs    Treaties,    Their   Mak- 

treaty    valid.     One    must    necessarily  ing  and  Enforcement,  70,  71. 


63  VIEWS  OF  MR.  CLAY.  [§    64 

with  the  provision  of  the  Constitution  of  the  United  States,  by 
which  the  Senate  is  a  component  part  of  the  treaty-making  power ; 
and  that  the  consent  and  advice  of  that  branch  of  Congress  are 
indispensable  in  the  formation  of  all  treaties.  According  to  the 
practice  of  this  government,  the  Senate  is  not  ordinarily  con- 
sulted in  the  initiatory  state  of  a  negotiation,  but  its  consent 
and  advice  are  only  invoked,  after  a  treaty  is  concluded,  under 
the  direction  of  the  President,  and  submitted  to  its  consideration. 
Each  of  the  two  branches  of  the  treaty-making  authority  is  in- 
dependent of  the  other,  whilst  both  are  responsible  to  the  States 
and  to  the  people,  the  common  sources  of  their  respective  pow- 
ers. It  results,  from  this  organization,  that,  in  the  progress  of 
the  government,  instances  may  sometimes  occur  of  a  difference 
of  opinion  between  the  Senate  and  the  Executive  as  to  the  ex- 
pediency of  a  projected  treaty,  of  which  the  rejection  of  the 
Colombian  convention  affords  an  example.  The  people  of  the 
United  States  have  justly  considered  that,  if  there  be  any  incon- 
veniences in  this  arrangement  of  their  executive  powers,  those 
inconveniences  are  more  than  counterbalanced  by  the  greater  se- 
curity of  their  interests,  which  is  effected  by  the  mutual  checks 
which  are  thus  interposed.  But  it  is  not  believed  that  there  are 
any  inconveniences  to  foreign  powers  of  which  they  can  with 
propriety  complain.  To  give  validity  to  any  treaty,  the  consent 
of  the  contracting  parties  is  necessary.  As  to  the  mode  by  which 
that  consent  shall  be  expressed,  it  must  necessarily  depend  with 
each  upon  its  own  peculiar  constitutional  arrangement.  All  that 
can  rightly  be  demanded  in  treating  is  to  know  the  contingencies 
on  the  happening  of  which  that  consent  is  to  be  regarded  as 
sufficiently  testified.  This  information  the  government  of  the 
United  States  has  always  communicated  to  the  foreign  powers 
with  which  it  treats,  and  to  none  more  fully  than  to  the  United 
Kingdom  of  Great  Britain  and  Ireland.  Nor  can  it  be  admitted 
that  any  just  cause  of  complaint  can  arise  out  of  the  rejection 
by  one  party  of  a  treaty  which  the  other  has  previously  ratified. 
When  such  a  case  occurs,  it  only  proves  that  the  consent  of  both, 
according  to  the  constitutional  precautions  which  have  been  pro- 
vided for  manifesting  that  consent,  is  wanting  to  make  the  treaty 
valid.  One  must  necessarily  precede  the  other  in  the  ac-t  of 
ratification;  and  if,  after  a  treaty  be  ratified  by  one  party,  a 
ratification  of  it  be  withheld  by  the  other,  it  merely  shows  that 


64] 


MAKING  OF  TREATIES. 


64 


one  is,  and  th  }  other  is  not,  willing  to  come  under  the  obligations 
of  the  proposed  treaty."20 

As  a  ratification  by  the  Senate  is  essential  to  the  full  execution 
of  a  treaty,  Jt  is  competent  for  the  President  to  withhold  from 
the  Senate  a  treaty  that  has  been  negotiated,  or  he  may  submit  a 
treaty  with  a  recommendation  that  it  be  amended  in  certain  par- 
ticulars, and  treaties  may  also  be  withheld  either  for  the  purpose 
of  modification  by  negotiation  or  of  termination  of  proceedings 
on  them.21 


20  Mr.  Clay,  Secretary  of  State,  to 
Mr.    Addington,    April    6,    1825,   Am. 
State  Papers,  For.  Eel.,  V,  783. 

21  Mr.  Crandall  on  this  subject  says : 
"As    all    treaties    must    receive    this 
final  ratification,  the  President  may  at 
will,   so   far   as   depends   on  his   con- 
stitutional power,  withhold  from  the 
Senate    a    treaty   already    negotiated. 
Of  treaties  thus  withheld  the  Monroe- 
Pinkney  treaty  with  Great  Britain  of 
December    31,    1806,    a    treaty    with 
Mexico  signed  March  21,   1853,  rela- 
tive to  a  transit  way  across  the  Isth- 
mus   of    Tehuantepec,   an   extradition 
convention      with      Colombia      signed 
March    30,    1872,    a    convention    with 
Switzerland  signed  February  14,  1885, 
for  the  protection  of  trademarks,  and 
the  convention  adopted  in  April,  1890, 
by  the  First  International  American 
Conference    for   the   establishment   of 
a    tribunal    of    arbitration,    are    ex- 
amples.    Or  the   treaty  may  be  sub- 
mitted,  accompanied  with  recommen- 
dations   for    amendments.     President 
Pierce  in  submitting  on  February  10, 
1854,  the  Gadsden  treaty  of  Decem- 
ber   30,    1853,    recommended    certain 
amendments.     President  Cleveland  in 
submitting,  July  5,  1888,  an  extradi- 
tion treaty  signed  May  7,  1888,  with 
Colombia,  called  attention  to  changes 
suggested  by  the  Secretary  of  State. 
On  December  16,  1845,  President  Polk 
communicated  to  the  Senate  an  extra- 


dition treaty,  signed  January  29,  1845, 
with  Prussia,  and  certain  other  Ger- 
man states,  and  at  the  same  time  sug- 
gested a  modification  of  Article  III, 
in  which  it  was  stipulated,  contrary  to 
the  rule  then  consistently  maintained 
by  the  United  States,  that  the  con- 
tracting parties  should  not  be  bound 
to  deliver  up  their  own  citizens.  The 
Senate  having  failed  to  make  the 
amendment  in  its  resolution  of  June 
21,  1848,  advising  the  ratification,  the 
President,  for  this  as  well  as  for  other 
reasons,  refused  to  ratify  the  treaty. 
' '  So  also  treaties  may  be  with- 
drawn from  the  consideration  of  the 
Senate  either  to  effect  changes  by 
negotiation  or  to  terminate  proceed- 
ings on  them.  A  treaty  with  Bel- 
gium, signed  November  4,  1884,  regu- 
lating the  right  of  succession  to  and 
the  acquisition  of  property,  was  with- 
drawn from  the  Senate  by  President 
Arthur  by  a  message  of  February  17, 
1885,  and  was  not  resubmitted.  Presi- 
dent Cleveland  in  messages  of  March 
13,  1885,  April  2,  1885,  and  March 
9,  1893,  requested  the  return  of 
treaties  concluded  by  his  predeces- 
sors— November  18,  1884,  with  Spain 
for  commercial  reciprocity;  Decem- 
ber 1,  1884,  with  Nicaragua  relative 
to  the  construction  of  an  interoceanic 
canal;  December  4,  1884,  with  the 
Dominican  Kepublic  for  commercial 
reciprocity;  an  article  signed  June 


65 


ADDING  DECLARATION. 


[§  65 


§  65.  Adding  declaration. — When  a  written  declaration  is  an- 
nexed by  one  of  the  parties  to  the  treaty  at  the  time  of  its 
ratification  for  the  purpose  of  explaining  ambiguous  language  or 
of  adding  a  new  and  distinct  stipulation,  and  the  treaty  with 
such  declaration  attached  is  afterward  ratified  by  the  other  party, 
the  declaration  becomes  a  part  of  the  treaty.22  But  a  proviso 
made  by  one  party  that  a  treaty  shall  be  considered  effective  only 
on  certain  conditions  may  be  considered  as  directory  merely.23 

The  treaty  made  in  1819  between  the  United  States  and  the 
King  of  Spain  annuls  the  grant  of  lands  in  Florida  by  the  King 
of  Spain  to  the  Duke  of  Alagon,  irrespective  of  the  fact  whether 
it  takes  date  from  the  royal  order  of  December  17,  1817,  or  from 


23,  1884,  with  the  Argentine  Confed- 
eration supplementary  to  the  treaty 
of  commerce  of  July  27,  1853;  and 
the  Hawaiian  annexation  treaty  signed 
February  14,  1893.  President  Roose- 
velt, in  a  message  of  December  8, 
1902,  requested  the  return  of  a  com- 
mercial convention  with  the  Domini- 
can Republic  signed  June  25,  1900, 
together  with  an  additional  article 
thereto,  and  a  convention  with  Great 
Britain  signed  January  30,  1897,  rela- 
tive to  the  demarcation  of  the  Alaskan 
boundaries.  Instances  of  withdrawals 
for  the  purpose  of  making  slight 
changes  are  quite  numerous.  The  con- 
vention with  Spain,  signed  August  7, 
1882,  supplementary  to  the  extradi- 
tion convention  of  January  5,  1877, 
was  returned  for  verbal  changes  at 
the  request  of  the  Secretary  of  State 
made  to  the  chairman  of  the  Com- 
mittee on  Foreign  Relations. ' '  Cran- 
dall's  Treaties,  Their  Making  and 
Enforcement,  82,  83. 

Speaking  of  treaties  rejected  by  the 
Senate,  he  says:  "Of  treaties  rejected 
by  the  Senate,  through  a  failure  to 
act  on  them,  or  outright,  may  be 
mentioned,  besides  the  various  recent 
treaties  for  commercial  reciprocity, 
the  important  treaties  signed  March 
Treaties — 5 


25,  1844,  with  the  German  Zollverein; 
July  20,  1855,  with  Hawaii;  Octo- 
ber 24,  1867,  with  Denmark  for  the 
cession  of  the  islands  of  St.  Thomas 
and  St.  John;  November  29,  1869, 
for  the  annexation  of  the  Dominican 
Republic;  December  10,  1824,  with 
Colombia  for  the  suppression  of  the 
African  slave  trade;  March  6,  1835, 
with  the  Swiss  Confederation;  April 
12,  1844,  for  the  annexation  of  Texas ; 
December  14,  1859,  with  Mexico  rela- 
tive to  transits  and  commerce;  March 
5,  1860,  with  Spain  for  the  settle- 
ment of  claims;  May  21,  1867,  with 
Hawaii  for  commercial  reciprocity; 
and  the  following  with  Great  Brit- 
ain; January  14,  1869,  for  the  ad- 
justment of  outstanding  claims;  June 
25,  1886,  for  the  extradition  of  crim- 
inals; February  15,  1888,  for  the 
regulation  of  the  fisheries;  and  Jan- 
uary 11,  1897,  for  the  settlement  of 
disputes  by  arbitration."  Crandall's 
Treaties,  Their  Making  and  Enforce- 
ment, 71,  72. 

'*  Doe  v.  Braden,  16  How.  635,  14 
L.  ed.  1090. 

23  New  York  Indians  v.  United 
States,  170  U.  S.  22,  18  Sup.  Ct.  Rep. 
531,  42  L.  ed.  927. 


§    66]  MAKING  OP  TREATIES.  66 

the  grant  of  February  6,  1818,  by  reason  of  a  declaration  to  that 
effect  which  the  President  of  the  United  States  made  on  the  pres- 
entation of  the  treaty  for  an  exchange  of  ratifications,  and  to 
which  the  King  of  Spain  gave  his  assent  in  writing,  and  which 
was  again  ratified  by  the  Senate  of  the  United  States.24 

§  66.  Proviso  adopted  by  Senate. — The  Senate  adopted  sev- 
eral amendments  to  a  treaty  between  the  United  States  and  the 
New  York  Indians,  which  had  been  duly  signed  and  submitted  to 
the  Senate,  and  also  added  a  proviso  that  the  treaty  should  have 
no  force  or  effect  until  the  acceptance  of  these  amendments,  and 
that  if  any  part  of  the  Indians  should  fail  to  emigrate,  the  Presi- 
dent should  deduct  a  quantity  of  land  from  that  granted  to  them. 
The  proviso  was  not  found  either  in  the  original  or  in  the  pub- 
lished copy  of  the  treaty,  or  in  the  proclamation  of  the  Presi- 
dent publishing  the  treaty.  The  question  arose  whether  the 
proviso  ever  became  operative,  and  the  government  relied  upon 
Doe  v.  Braden,25  but  the  court  said  that  the  question  in  that 
case  was  whether  the  king  had  power  to  annul  the  grant,  which 
was  considered  a  political  and  not  a  judicial  question,  and  that 
from  the  fact  that  the  annulling  clause  had  been  inserted  in  the 
ratification  and  published  in  both  countries  as  part  of  the  treaty, 
there  could  be  no  question  whatever  of  concealment.  But  as  to 
the  proviso  added  by  the  Senate  to  the  Indian  treaty,  the  court 
said:  "In  any  event  it  is' difficult  to  see  how  it  can  be  regarded 
as  part  of  the  treaty  or  as  limiting  at  all  the  terms  of  the  grant. 
The  power  to  make  treaties  is  vested  by  the  Constitution  in  the 
President  and  Senate,  and  while  this  proviso  was  adopted  by  the 
Senate,  there  is  no  evidence  that  it  ever  received  the  sanction  or 
approval  of  the  President.  It  cannot  be  considered  as  a  legisla- 
tive act,  since  the  power  to  legislate  is  vested  in  the  President, 
Senate  and  House  of  Representatives.  There  is  something,  too, 
which  shocks  the  conscience  in  the  idea  that  a  treaty  can  be  put 
forth  as  embodying  the  terms  of  an  arrangement  with  a  foreign 
power,  or  an  Indian  tribe;  a  material  provision  of  which  is  un- 
known to  one  of  the  contracting  parties,  and  is  kept  in  the  back- 
ground to  be  used  by  the  other  only  when  the  exigencies  of  a 

24  Doe  v.  Braden,  16  How.  635,  14  25  16  How.  635,  14  L.  ed.   1090. 

L.  ed.  1090. 


67      AMENDMENT    BY    DECLARATION    OP    INTERPRETATION.      [§§    67,   68 

particular  case  may  demand  it."26  The  supplemental  article  of 
the  treaty  of  1800  was  appended  to  the  treaty  after  it  was  signed, 
and  therefore  cannot  be  referred  to  for  the  purpose  of  explain- 
ing the  preceding  articles.27 

§  67.  Amendment  by  declaration  of  interpretation. — A  treaty 
cannot  be  amended  without  the  consent  of  the  Senate  by  making  a 
declaration  of  interpretation.  The  American  Minister  at  Athens 
was  authorized  in  1864  to  conclude  with  Greece  a  convention 
relative  to  the  registration  of  trademarks.  He  conferred  with 
the  minister  for  foreign  affairs  of  that  country,  and  was  ad- 
vised that  the  ratification  of  the  chamber  of  deputies  was  neces- 
sary to  the  execution  of  the  convention,  and  that  much  time 
might  elapse,  owing  to  the  condition  of  affairs  then  existing,  be- 
fore the  consent  of  that  body  could  be  secured.  The  American 
Minister  signed  with  the  minister  for  foreign  affairs  a  declara- 
tion, which  by  means  of  an  interpretation  of  the  existing  treaty 
attempted  to  accomplish  the  purpose  desired.  The  Department 
of  State  took  the  view  that  the  treaty  then  in  existence  was  not 
susceptible  of  the  construction  placed  upon  it,  and  deemed  the 
declaration  to  be  in  effect  a  new  treaty,  which  could  be  ratified 
only  by  the  President,  with  the  advice  and  consent  of  the  Senate. 
The  State  Department  maintained  this  view,  and  as  there  was  a 
disinclination  on  the  part  of  the  government  of  Greece  to  ne- 
gotiate a  formal  convention,  instructions  were  sent  to  the  Ameri- 
can Minister  to  proceed  no  further.28 

§  68.  Views  of  Department  of  State. — It  was  proposed  by 
a  protocol  or  declaration  to  determine  the  construction  of  cer- 
tain provisions  of  the  convention  of  March  14,  1884,  relating  to 
submarine  cables,  and  the  American  Minister  was  authorized  to 
sign  the  protocol  subject  to  the  approval  of  the  Senate.  The 

26  New     York     Indians     v.     United  tary  of  State,  No.  41,  July  21,  1894, 
States,  170  U.  S.  22,  18  Sup.  Ct.  Eep.  For.  Eel.  1894,  295;  Mr.  Gresham  to 
531,  42  L.  ed.  927.  Mr.  Alexander,  No.  43,  February  21, 

27  The  Tom,  39  Ct.  of  Cl.  290.  1895,    For.    Eel.    1895,    II,    759;    Mr. 

28  Mr.    Uhl,    Acting    Secretary    of  Olney,  Secretary  of  State,  to  Mr.  Alex- 
State,    to    Mr.    Alexander,    No.    21,  ander,  No.  75,  November  9,  1895,  Id. 
May  16,  1894,  For.  Eel.  1894,  293;  Mr.  763. 

Alexander,    to    Mr.    Gresham,    Secre- 


§    68]  MAKING  OF  TREATIES.  68 

Secretary  of  State  was  requested  to  authorize  the  signing  of  the 
protocol  unconditionally.  With  this  request  he  did  not  comply, 
and 'in  a  note  to  the  American  Minister  to  France  stated: 

"By  the  Constitution  of  the  United  States  treaties  made  un- 
der the  authority  of  the  United  States  are  a  part  of  the  supreme 
law  of  the  land,  and  the  convention  of  the  14th  of  March,  1884, 
having  been  made  in  accordance  with  the  Constitution,  is  a  part 
of  that  supreme  law. 

"But,  whilst  it  is  true  that  treaties  are  a  part  of  the  supreme 
law  of  the  land,  they  are  nevertheless  to  be  viewed  in  two  lights ; 
that  is  to  say,  in  the  light  of  politics  and  in  the  light  of  judicial 
law.  Where  the  construction  of  a  treaty  is  a  matter  of  national 
policy,  the  authoritative  construction  is  that  of  the  political 
branch  of  the  government.  It  is  the  function  of  the  Executive 
or  of  Congress,  as  the  case  may  be.  When  a  political  question  is 
so  determined,  the  courts  follow  that  determination.  Such  was 
the  decision  of  the  Supreme  Court  in  cases  arising  under  the 
treaty  of  1803  with  France,  of  1819  with  Spain,  and  of  1848  with 
Mexico. 

"But  where  a  treaty  is  to  be  construed  merely  as  a  municipal 
law,  affecting  private  rights,  the  courts  act  with  entire  inde- 
pendence of  the  Executive,  in  construing  both  the  treaty  and  the 
legislation  that  Congress  may  have  adopted  to  carry  it  into  ef- 
fect. And  while  great  weight  might  be  given  by  the  courts  to  an 
opinion  of  the  Executive  in  that  relation,  such  an  opinion  would 
not  be  regarded  as  having  controlling  force." 

He  stated  that  the  declaration  in  question  was  intended  to 
determine  two  questions,  that  of  penal  responsibility,  for  the  ac- 
cidental or  necessary  breaking  or  injury  of  a  cable  in  an  attempt 
to  repair  another  cable;  and  that  of  civil  responsibility,  for  in- 
juries done  to  a  cable  in  an  effort  to  lay  or  repair  another  cable. 

"These  are  judicial  questions,"  he  declared,  "to  be  determined 
by  the  courts  before  whom  the  appropriate  suits  may  be  brought. 
The  only  power  that  can  authoritatively  construe  a  treaty  for  the 
judicial  tribunal  on  questions  of  the  character  described  is  the 
legislature,  or  the  treaty-making  power  itself.  In  either  case  the 
result  would  be  a  law  which  would  be  binding  upon  the  courts. 

"  It  is  to  be  observed  in  this  connection  that  the  treaty  in  ques- 
tion is  not  self-executing,  and  that  it  requires  appropriate  legisla- 
tion to  give  it  effect.  If,  under  these  circumstances,  the  Execu- 


1  69       SENATE    RESOLUTION    CONTROLLING    MEANING  OF    TREATY.       [§    69 

tive  should  now  assume  to  interpret  the  force  and  effect  of  the 
convention,  we  might  hereafter  have  the  spectacle,  when  Con- 
gress acted,  of  an  Executive  interpretation  of  one  purport  and  a 
different  Congressional  interpretation,  and  this  in  a  matter  not  of 
Executive  cognizance. 

"For  the  reasons  stated  it  was  not  deemed  expedient  to  author- 
ize you  to  sign  the  declaration  unconditionally.  And  as  the  ses- 
sion of  Congress  was  drawing  to  a  close  when  the  note  of  the 
French  minister  was  received,  and  it  seemed  impracticable  to  se- 
cure the  Senate's  ratification  of  the  declaration  before  adjourn- 
ment, it  was  not  thought  best  to  send  you  such  telegraphic  in- 
structions as  were  solicited. 

"I  desire,  however,  to  refer  to  an  incident  in  our  diplomatic 
history  w^hich  bears  upon  the  matter  under  consideration  and 
which  might  have  been  regarded  as  a  precedent  for  the  Execu- 
tive in  this  case,  if  circumstances  had  seemed  to  require  a  differ- 
ent course  from  that  which  has  been  taken.  I  refer  to  the  pro- 
tocol which  accompanies  the  treaty  of  Guadalupe  Hidalgo,  in  the 
volume  of  treaties  between  the  United  States  and  other  powers. 
....  The  expressed  object  of  this  protocol  was  to  explain  the 
amendments  of  the  Senate.  It  was  defended  by  the  administra- 
tion on  this  ground ;  and  in  a  message  to  the  House  of  Representa- 
tives, the  President  stated  that  'had  the  protocol  varied  the 
treaty,  as  amended  by  the  Senate  of  the  United  States,  it  would 
have  no  binding  effect/  But  notwithstanding  this  explanation, 
the  course  of  the  President  in  not  submitting  the  protocol  to  the 
Senate  before  the  exchange  of  ratifications  of  the  treaty  was 
severely  criticised  in  Congress."29 

§  69.     Senate  resolution  controlling  meaning  of  treaty. — The 

meaning  of  a  treaty  cannot  be  controlled  by  a  resolution  of  the 
Senate  adopted  by  a  vote  of  less  than  two-thirds  of  a  quorum 
that  it  was  not  intended  to  have  a  certain  effect.  After  the  rati- 
fication of  the  treaty  with  Spain,  by  which  the  Philippine  Islands 
were  ceded  to  the  United  States,  the  Senate  adopted  a  resolu- 
tion, "That  by  the  ratification  of  the  treaty  of  peace  with  Spain 
it  is  not  intended  to  incorporate  the  inhabitants  of  the  Philippine 

29  Mr.   Bayard,   Secretary  of  State,    to  Mr.  McLane,  Min.  to  France,  Nov. 
24,  1886,  For.  Eel.  1887,  274. 


§    69]  '  MAKING  OF  TREATIES.  70 

Islands  into  citizenship  of  the  United  States,  nor  is  it  intended  to 
permanently  annex  said  islands  as  an  integral  part  of  the  ter- 
ritory of  the  United  States ;  but  it  is  the  intention  of  the  United 
States  to  establish  on  said  islands  a  government  suitable  to  the 
wants  and  conditions  of  the  inhabitants  of  said  islands,  to  pre- 
pare them  for  local  self-government,  and  in  due  time  to  make 
such  disposition  of  said  islands  as  will  best  promote  the  interests 
of  the  United  States  and  the  inhabitants  of  said  islands. ' ' 30  Mr. 
Chief  Justice  Fuller,  speaking  of  the  effect  of  this  resolution, 
said:  "It  is  enough  that  this  was  a  joint  resolution;  that  it  was 
adopted  by  the  Senate  by  a  vote  of  26  to  22,  not  two-thirds  of  a 
quorum;  and  that  it  is  absolutely  without  legal  significance  in 
the  question  before  us.  The  meaning  of  the  treaty  cannot  be 
controlled  by  subsequent  explanations  of  those  who  may  have 
voted  to  ratify  it.  What  view  the  House  might  have  taken  as 
to  the  intention  of  the  Senate  in  ratifying  the  treaty  we  are  not 
informed, '  nor  is  it  material ;  and  if  any  implication  from  the 
action  referred  to  could  properly  be  indulged  in  it  would  seem 
to  be  that  two-thirds  of  a  quorum  of  the  Senate  did  not  consent 
to  the  ratification  on  the  grounds  indicated." 

Mr.  Justice  Brown,  in  a  concurring  opinion,  declared  that  the 
case  would  not  be  essentially  different  if  the  resolution  had  been 
adopted  by  a  unanimous  vote  of  the  Senate.  "Obviously,  the 
treaty,"  said  he,  "must  contain  the  whole  contract  between  the 
parties,  and  the  power  of  the  Senate  is  limited  to  a  ratification 
of  such  terms  as  have  already  been  agreed  upon  between  the 
President,  acting  for  the  United  States,  and  the  commissioners 
of  the  other  contracting  poweT.  The  Senate  has  no  right  to  ratify 
the  treaty  and  introduce  new  terms  into  it,  which  nhall  be  obliga- 
tory upon  the  other  power,  although  it  may  refuse  its  ratifica- 
tion, or  make  such  ratification  conditional  upon  the  adoption  of 
amendments  to  the  treaty.  If,  for  instance,  the  treaty  with 
Spain  had  contained  a  provision  instating  the  inhabitants  of  the 
Philippines  as  citizens  of  the  United  States,  the  Senate  might  have 
refused  to  ratify  it  until  this  provision  was  stricken  out.  But 
it  could  not,  in  my  opinion,  ratify  the  treaty  and  then  adopt  a 
resolution  declaring  it  not  to  be  its  intention  to  admit  the  in- 
habitants of  the  Philippine  Islands  to  the  privileges  of  citizen- 

30  32  Cong.  Eec.,  55  Cong.,  p.  1847. 


71  EXECUTIVE  AGREEMENTS.  [§§    70,    71 

ship  of  the  United  States.  Such  resolution  would  be  inoperative 
as  an  amendment  to  the  treaty,  since  it  had  not  received  the  as- 
sent of  the  President  or  the  Spanish  commissioners."31 

§  70.  Executive  agreements.— The  President  has  frequently, 
pending  negotiations  for  a  permanent  settlement  of  controversies, 
made  agreements  taking  the  shape  of  an  exchange  of  notes  or 
of  a  formal  protocol.  These,  ordinarily,  are  not  submitted  to  the 
Senate  for  ratification.  An  agreement  of  this  character,  com- 
monly called  a  modus  vivendi,  was  made  with  Great  Britain  in 
1891,  to  provide  for  the  protection  of  fur  seals  in  Bering  Sea. 
While  negotiations  for  a  treaty  of  arbitration  were  pending,  a 
similar  modus  vivendi  was  concluded  in  1893,  but  as  it  admitted 
the  possibility  of  a  future  award  of  damages  against  the  United 
States,  it  was  submitted  to  the  Senate.  In  1899,  pending  the 
permanent  settlement  of  the  boundary  of  Alaska,  a  modus  vivendi 
was  concluded,  and  likewise  while  the  ratification  of  the  con- 
vention signed  February  15,  1888,  for  the  adjustment  of  the  ques- 
tion relating  to  the  northeastern  fisheries,  was  pending,  a  modus 
vivendi  was  arranged  by  the  commissioners  of  the  United  States 
and  Great  Britain.32  In  1877  a  "protocol  of  conference  and 
declarations  concerning  judicial  procedure  was  signed  by  Mr. 
Gushing,  as  minister  plenipotentiary  of  the  United  States  to 
Spain,  and  Senor  Calderon  y  Collantes,  as  Spanish  minister  of 
state.  Certain  pledges  were  contained  in  the  protocol  on  the 
part  of  Spain,  as  to  the  treatment  of  citizens  of  the  United  States 
residing  in  her  ultramarine  possessions,  while  Mr.  Gushing  made, 
on  the  part  of  the  United  States,  certain  declarations  as  to  the 
state  of  the  existing  law  in  that  country. "  ^ 

§  71.  Protocols  within  executive  authority. — "Protocols  of 
agreement  as  to  the  basis  of  future  negotiations  are  clearly 
within  Executive  authority.  Such  are,  for  instance,  the  protocols 
signed  with  Costa  Rica  and  Nicaragua,  December  1,  1900,  in  ref- 
erence to  possible  future  negotiations  for  the  construction  of  an 
interoceanic  canal  by  way  of  Lake  Nicaragua The  final 

31  The    Diamond   Kings,    183   U.    S.  Power    Under    the     Constitution,     11 
176,  22   Sup.   Ct.  Eep.  59,  46  L.  ed.  Yale  Law  Journal,  77  (Dec.,  1901). 
138.  33  United     States     Treaty,    Volume 

32  J.     W.     Foster,      Treaty-making  1030. 


§    71]  MAKING  OP  TREATIES.  72 

protocol  signed  at  Peking,  September  7,  1901,  by  the  allied  pow- 
ers on  the  one  hand,  and  by  China,  on  the  other,  at  the  con- 
clusion of  the  Chinese  troubles,  likewise  was  not  submitted  to 
the  Senate."34 

On  October  20,  1899,  a  provisional  boundary  line  between 
Alaska  and  the  Dominion  of  Canada,  in  the  vicinity  of  Lynn 
Canal,  was  effected  through  a  modus  vivendi,  by  an  exchange  of 
notes  between  Mr.  Hay,  Secretary  of  State,  and  Mr.  Tower, 
British  charge  d'affaires  at  Washington.35  In  1882,  Mr.  Frel- 
inghuysen,  Secretary  of  State,  and  Senor  Romero,  the  Mexican 
Minister,  arranged  for  the  reciprocal  crossing  and  recrossing  of 
the  frontier,  by  the  troops  of  the  United  States  and  Mexico,  in 
pursuit  of  marauding  Indians,  and  this  agreement  was  prolonged 
successively  until  1886.  On  June  4,  1896,  an  agreement  of  a 
more  formal  character  for  the  same  purpose  was  entered  into 
between  Mr.  Olney  and  Senor  Romero,  who  by  the  Mexican 
Senate  was  authorized  to  enter  into  the  agreement.36 

Mr.  Foster,  Secretary  of  State,  in  a  report  to  the  President, 
stated  that  "an  exchange  of  diplomatic  notes  has  often  suf- 
ficed without  any  further  formality  of  ratification  or  exchange 
of  ratifications,  or  even  of  proclamation,  to  effect  purposes  more 
usually  accomplished  by  the  more  complex  machinery  of  trea- 
ties."37 

34  Crandall's   Treaties,    Their   Mak-  ston.     On    receipt    of    this    protocol, 

ing  and  Enforcement,  87.  Mr.   Webster,   January    17,    1851,   in- 

a5  For.   Eel.    1899,   328-330.  structed    Mr.    Lawrence    to    '  address 

36  For.    Eel.    1882,    419,    421;    For.  a    note    to    the    British    secretary    of 
Eel.  1896,  438.  state  for  foreign  affairs,  acquainting 

37  Sen.    Ex.    Doc.    9,    52    Cong.    2  him  that  the  arrangement  referred  to 
Sess.,  H.  Doc.  471,  56  Cong.  1  Sess.  16,  is     approved     by     this     government. ' 
17.     In  that  report  he  said : .  "  On  De-  Mr.  Lawrence  did  so  on  the  10th  ot 
cember  9,  1850,  in  a  conference  held  February,  1851,  and  the  acknowledg- 
at   the   foreign   office  in   London  be-  ment  of  his  note  by  the  British  sec- 
tween    the    United    States    Minister,  retary    of    state    closed    the    transac- 
Abbott   Lawrence   and   Lord   Palmer-  tion.     No     ratification     occurred     on 
ston,  it  was  agreed    that   the    Cana-  either     side.     Congress     appropriated 
dian  territory  of  Horseshoe  Eeef,  in  money    for    the    erection    of    a   light- 
the  Niagara  Eiver,  should  be  ceded  to  house  which  was  built ;  and  the  United 
the  United  States  for  the  purpose  of  States    thus    possesses    and    exercises 
erecting     a     lighthouse     thereon.     A  full    jurisdiction    over    territory    ac- 
memorandum,     or    protocol,    of    this  quired    by    cession    from    a    foreign 
agreement  was  drawn  up  and  signed  power   without   a   treaty." 

by  Mr.  Lawrence  and  Lord   Palmer- 


73  INSTANCES.  [§  72 

§  72.  Instances. — In  1899,  an  agreement  was  entered  into  by 
Brigadier-General  Bates,  with  the  Sultan  of  Sulu  and  his  prin- 
cipal chiefs,  acknowledging  the  sovereignty  of  the  United  States 
over  the  archipelago,  suppressing  piracy,  providing  for  free 
trade  in  the  products  of  the  archipelago  with  the  Philippine 
Islands,  protecting  the  sultan  against  foreign  aggression,  and 
providing  for  the  payment  of  certain  salaries  to  the  sultan  and 
his  associates  in  the  administration  of  the  islands.  President 
McKinley,  in  his  annual  message  of  1899,  stated  that  he  had  con- 
firmed the  agreement  subject  to  the  action  of  Congress,  and  with 
the  reservation,  communicated  to  the  Sultan  at  Sulu,  that  the 
agreement  should  not  be  deemed  a  consent  on  the  part  of  the 
United  States  to  the  existence  of  slavery  in  the  archipelago.38  In 
187]  a  settlement  of  claims  of  American  citizens  arising  from 
the  acts  of  the  Spanish  authorities  in  Cuba  was  arranged  by  an 
exchange  of  notes  between  General  Sickles,  the  American  Minis- 
ter to  Spain,  and  the  Spanish  minister  of  state.39 

The  President  is  empowered  by  section  13  of  the  law  of  March 
3,  1891,  to  extend  the  benefits  of  international  copyright  to  citi- 
zens and  subjects  of  a  foreign  state  when  he  has  received  as- 
surance that  citizens  of  the  United  States  are  allowed  the  benefit 
of  copyright  in  that  state,  on  the  basis  substantially  as  its  own 
citizens,  or  when  it  appears  that  the  state  is  a  party  to  an  inter- 
national agreement  providing  for  reciprocity  in  the  granting  of 
copyright,  and  permitting  the  United  States  at  its  pleasure  to  be- 
come a  party.  The  benefits  of  this  has  been  extended  by  the 
President  to  the  subjects  of  several  nations,  among  them  Belgium, 
Great  Britain,  France,  Switzerland,  Germany,  Italy,  Denmark, 
Portugal,  Spain,  Mexico,  Chile,  Costa  Rica,  Netherlands,  Cuba 
and  Norway.  "Following  the  postal  convention  with  New  Gran- 
ada of  March  6,  1844,  numerous  other  conventions  of  the  same 
nature  were  concluded  by  the  President  and  ratified  with  the 
consent  of  the  Senate.  By  the  act  of  June  8,  1872,  the  Post- 
master-General is  given  the  power  to  enter  into  money-order 
agreements  with  the  post  departments  of  foreign  governments, 
and  by  and  with  the  advice  and  consent  of  the  President,  to  nego- 
tiate and  conclude  postal  conventions.  In  virtue  of  this  act,  con- 

38  For.   Eel.   1899,   XLIX.  7,   1892;    H.    Doe.    471,   56   Cong.    1 

39  Keport  of  Mr.  Foster,  Secretary       Sess.   17;    Sen.  Ex.  Doc.  9,  56  Cong. 
of  State,  to  the  President,  December       1  Sess. 


§    73]  MAKING    OP    TREATIES.  74 

ventions  of  this  class  have  been  concluded  by  the  Executive  with- 
out submission  to  the  Senate.  Among  these  are  the  Universal 
Postal  Conventions,  signed  at  Vienna,  July  4,  1891,  and  at  Wash- 
ington, June  15,  1897.  "40 

§  73.  Suspension  of  tariff  act  by  President. — A  section  of  a 
tariff  act  which  authorizes  the  President  to  suspend  the  provisions 
of  the  act  relating  to  the  introduction,  free  of  duty,  of  certain 
articles  is  not  unconstitutional.  It  cannot  be  said  to  be  liable 
to  the  objection  that  it  transfers  legislative  'and  treaty-making 
power  to  the  President.41 

"That  Congress  cannot  delegate  legislative  power  to  the  Pres- 
ident is  a  principle  universally  recognized  as  vital  to  the  integrity 
and  maintenance  of  the  system  of  government  ordained  by  the 
Constitution.  The  Act  of  October  1st,  1890,  in  the  particular  un- 
der consideration,  is  not  inconsistent  with  the  principle.  It  does 
not,  in  any  real  sense,  invest  the  President  with  the  power  of 
legislation.  For  the  purpose  of  securing  reciprocal  trade  with 
countries  producing  and  exporting  sugar,  molasses,  coffee,  tea, 
and  hides,  Congress  itself  determined  that  the  provisions  of  the 
Act  of  October  1st,  1890,  permitting  the  free  introduction  of  such 
articles,  should  be  suspended  as  to  any  country  producing  and 
exporting  them,  that  imposed  exactions  and  duties  on  the  agri- 
cultural and  other  products  of  the  United  States,  which  the  Pres- 
ident deemed,  that  is,  which  he  found  to  be,  reciprocally  unequal 
and  unreasonable.  Congress  itself  prescribed,  in  advance,  the 
duties  to  be  levied,  collected  and  paid,  on  sugar,  molasses,  coffee, 
tea  or  hides,  produced  by  or  exported  from  such  designated  coun- 
try, while  the  suspension  lasted.  Nothing  involving  the  expedi- 
ency or  the  just  operation  of  such  legislation  was  left  to  the 
determination  of  the  President.  The  words,  'he  may  deem,'  in 
the  third  section,  of  course,  implied  that  the  President  would  ex- 
amine the  commercial  regulations  of  other  countries  producing 
and  exporting  sugar,  molasses,  coffee,  tea  and  hides,  and  form  a 
judgment  as  to  whether  they  were  reciprocally  equal  and  reason- 
able, or  the  contrary,  in  their  effect  upon  American  products. ' ' 42 

40  CrandalPs   Treaties,   Their   Mak-  42  Field  v.  Clark,  143  U.  S.  649,  12 
ing  and  Enforcement,  92.  Sup.   Ct.  Eep.  495,  36  L.  ed.   294. 

41  Field  v.  Clark,  143  U.  S.  649,  12  "Ten      commercial      arrangements 
Sup.  Ct.  Kep.  495,  36  L.  ed.   294.  were    concluded    and    made    effective 


75  *TG  EjtfGKETJOi,'  1-v  7  HP-  i?i\&SU/J!iNT.  [§    74 


§  74.  No  discretion  in  the  President.—  The  view  taken  of  the 
powers  of  the  President  in  such  a  case  is  that  while  he  may,  and 
must,  exercise  his  discretion  in  determining  whether,  as  a  fact, 
a  certain  event  has  or  has  not  occurred,  still  when  he  has  deter- 
mined as  a  fact  that  an  event  has  happened  authorizing  him  to 
issue  a  proclamation,  it  becomes  his  duty  to  issue  such  proclama- 
tion. In  the  language  of  Mr.  Justice  Harlan,  speaking  for  the 
court,  "when  he  ascertained  the  fact  that  duties  and  exactions, 
reciprocally  unequal  and  unreasonable,  were  imposed  upon  the 
agricultural  or  other  products  of  the  United  States  by  a  country 
producing  and  exporting  sugar,  molasses,  coffee,  tea,  or  hides,  it 
became  his  duty  to  issue  a  proclamation  declaring  the  suspension, 
as  to  that  country,  which  Congress  had  determined  should  occur. 
He  had  no  discretion  in  the  premises  except  in  respect  to  the  dura- 
tion of  the  suspension  so  ordered.  But  that  related  only  to  the 
enforcement  of  the  policy  established  by  Congress.  As  the  sus- 
pension was  absolutely  required  when  the  President  ascertained 
the  existence  of  a  particular  fact,  it  cannot  be  said  that  in  ascer- 
taining that  fact  and  in  issuing  his  proclamation,  in  obedience 
to  the  legislative  will,  he  exercised  the  function  of  making  laws. 
Legislative  power  was  exercised  when  Congress  declared  that  the 
suspension  should  take  effect  upon  a  named  contingency.  What 

by     means      of     this     section  —  Jan-  secured    in  favor    of  the  products  of 

uary  31,   1891,  with  Brazil;    June  4,  the    United    States;    and    it    further 

the    Dominican    Bepublic;    June    16,  authorizes   the   President,   when   such 

Spain;      December     30,     Guatemala;  concessions  are,  in  his  judgment,  re- 

January    30,    1892,    Germany;     Feb-  ciprocal  and    equivalent,    to  suspend, 

ruary    1,    Great    Britain;    March    11,  by    proclamation,     the     collection    on 

Nicaragua;      April      29,      Honduras;  those    articles   of   the   regular   duties 

May   25,   Austria-Hungary;    and   No-  imposed  by  the  Act,  and  subject  them 

vember    29,    Salvador.      These    were  to    special   rates   as   provided   in   the 

all  terminated  by  section   71   of  the  section.     On    the    authority    of    this 

tariff  act  of  August  27,  1894  .....  section    the    President   has   concluded 

Section    3    of    the    act    of    July    24,  and    made    effective  the    commercial 

1897,   not  only  provides,  as   did  sec-  agreements    of    May    28,    1898,    with 

tion   3   of  the   act   of   1890,   for   the  France;    May   22,   1899,   with  Portu- 

imposition  by  proclamation  of  certain  gal     (protocol      making      corrections 

differential   rates,   but    also     for    the  signed  January  11,   1900)  ;    July  10, 

conclusion    by    the    President  of  com-  1900,    with   Germany;    and   February 

mercial    agreements,    with    countries  8,    1900,     with     Italy."     CrandalPs 

producing     certain     enumerated     ar-  Treaties,  Their  Making   and  Enforce- 

ticles,    in   which    concessions    may   be  inent,    88-90. 


§    75]  MAKING  OP  TREATIES.  76 

the  President  was  required  to  do  was  simply  in  execution  of  the 
Act  of  Congress.  It  was  not  the  making  of  law.  He  was  the 
mere  agent  of  the  law-making  department  to  ascertain  and  de- 
clare the  event  upon  which  its  expressed  will  was  to  take  effect. 
It  was  a  part  of  the  law  itself  as  it  left  the  hands  of  Congress 
that  the  provisions,  full  and  complete  in  themselves,  permitting 
the  free  introduction  of  sugars,  molasses,  coffee,  tea,  and  hides, 
from  particular  countries,  should  be  suspended,  in  a  given  con- 
tingency, and  that  in  case  of  such  suspension  certain  duties  should 
be  imposed."43 

§  75.  Nonintercourse  act. — The  nonintercourse  act  of  1809  for^ 
bade  the  importation,  after  a  certain  date,  of  goods,  wares,  or 
merchandise  from  any  port  or  place  in  Great  Britain  or  France, 
with  the  proviso  that  the  President  of  the  United  States  should 
be  authorized,  in  case  either  France  or  Great  Britain  shall  so 
revoke  or  modify  her  edicts  as  that  they  shall  cease  to  vio- 
late the  neutral  commerce  of  the  United  States,  to  declare  the 
same  by  proclamation,  and  that  after  the  making  of  the  proclama- 
tion, the  trade  suspended  by  that  act,  and  the  act  imposing  an 
embargo,  could  "be  renewed  with  the  nation  so  doing."44  This 
act  expired  on  May  1,  1810,  and  on  that  day  another  act  was 
passed  by  Congress  in  which  it  was  declared  that  in  case  either 
Great  Britain,  before  a  certain  day,  should  so  revoke  or  modify 
her  edicts  "as  that  they  shall  cease  to  violate  the  neutral  com- 
merce of  the  United  States,  which  fact  the  President  of  the  United 
States  shall  declare  by  proclamation,"  and  if  the  other  nation 
shall  not,  within  a  specified  time,  revoke  or  modify  her  edicts  in 
like  manner,  then  certain  sections  of  the  act  of  1809  "shall  from 
and  after  the  expiration  of  three  months  from  the  date  of  the 
proclamation  aforesaid,  be  revived  and  have  full  force  and 
effect,  so  far  as  relates  to  the  dominions,  colonies,  and  depend- 
encies, and  to  the  articles,  the  growth,  produce  or  manufacture  of 
the  dominions,  colonies,  and  dependencies  of  the  nation  thus  re- 
fusing or  neglecting  to  revoke  or  modify  her  edicts  in  the  manner 
aforesaid."  It  was  further  provided  that  "the  restrictions  im- 
posed by  this  Act  shall,  from  the  date  of  such  proclamation,  cease 

43  Field  v.    Clark,  143  U.  S.  49,    12  44  2  Stats,  at   Large,  528. 

Sup.   Ct.  Eep.  495,  36  L.  ed.  294. 


77  SUSPENSION  AND  OPERATION  OF  ACTS.  [§    76 

and  be  discontinued  in  relation  to  the  nation  revoking  or  mod- 
ifying her  decrees  in  the  manner  aforesaid."  45 

President  Madison,  in  1810,  issued  a  proclamation  to  the  effect 
that  France  had  either  revoked  or  modified  her  edicts  in  such  a 
manner  that  they  ceased  to  violate  the  neutral  commerce  of  the 
United  States.  It  was  contended  that  it  was  incompetent  for 
Congress  to  transfer  legislative  power  to  the  President,  and  that 
the  making  of  a  law  dependent  upon  the  proclamation  of  the 
President  was  to  give  to  that  proclamation  the  effect  of  a  law. 
The  answer  made  to  this  contention  was  that  the  legislature  did 
not  transfer  any  power  of  legislation  to  the  President,  but  only 
prescribed  the  evidence  which  should  be  admitted  of  a  fact,  upon 
the  occurrence  of  which  the  law  should  go  into  effect.  The 
court  held  that  the  legislature  might  make  the  revival  of  an  act 
dependent  upon  a  future  event,  and  might  also  provide  that  event 
to  be  made  known  by  proclamation.  A  subsequent  act  of  Con- 
gress reviving  a  prior  act  revives  it  precisely  in  the  same  form  and 
with  the  same  effect  that  it  had  at  the  moment  of  its  expiration.46 

§  76.  Suspension  and  operation  of  acts  dependent  upon  Pres- 
ident.— An  act  approved  June  4,  1794,  during  the  administration 
of  Washington,  authorized  the  President,  when  Congress  was  not 
in  session  and  for  a  specified  period,  "whenever,  in  his  opinion, 
the  public  safety  shall  so  require,  to  lay  an  embargo  on  all  ships 
and  vessels  in  the  ports  of  the  United  States,  or  upon  the  ships 
and  vessels  of  the  United  States,  or  the  ships  and  vessels  of  any 
foreign  nation,  under  such  regulations  as  the  circumstances  may 
require,  and  to  continue  or  revoke  the  same,  whenever  he  shall 
think  proper. "  47  In  1798,  by  an  act  approved  on  the  13th  of 
June  of  that  year,  commercial  intercourse  between  the  United 
States  and  France  and  its  dependencies  was  suspended.  But  the 
act  provided  that  if  the  government  of  France,  and  all  persons 
acting  by  or  under  its  authority,  before  the  next  session  of  Con- 
gress should  "clearly  disavow,"  and  should  "be  found  to  refrain 
from  the  aggressions,  depredations,  and  hostilities  which  have 
been  and  are  by  them  encouraged  and  maintained  against  the 
vessels  and  other  property  of  the  citizens  of  the  United  States, 

43  2   Stats,   at  Large,  605,  606.  47  1  Stats,  at  Large,  372. 

46  Brig  Aurora  v.  United  States,  7 
Cranch,  382,  3  L.  ed.  378. 


§    77]  MAKING  OF  TREATIES.  78 

and  against  their  natural  rights  and  sovereignty,  in  violation  of 
the  faith  of  treaties  and  the  laws  of  nations,"  and  should  " there- 
by acknowledge  the  just  claims  of  the  United  States  to  be  con- 
sidered as  in  all  respects  neutral,  and  unconnected  in  the  present 
European  war,  if  the  same  shall  be  continued,  then  and  there- 
upon, it  shall  be  lawful  for  the  President  of  the  United  States, 
being  well  ascertained  of  the  premises,  to  remit  and  discontinue 
the  prohibitions  and  restraints  hereby  enacted  and  declared ;  and 
he  shall  be  and  is  hereby  authorized  to  make  proclamation  thereof 
accordingly."  48  By  a  subsequent  act  approved  February  9,  1799, 
commercial  intercourse  with  France  and  its  dependencies  was 
further  suspended,  and  it  was  provided  by  this  act  that  at  any 
time  after  its  passage,  "it  shall  be  lawful  for  the  President  of 
the  United  States,  if  he  shall  deem  it  expedient  and  consistent 
with  the  interest  of  the  United  States,  by  his  order,  to  remit  and 
discontinue,  for  the  time  being,  the  restraints  and  prohibitions 
aforesaid,  either  with  respect  to  the  French  Republic,  or  to  any 
island,  port,  or  place  belonging  to  the  said  republic,  with  which  a 
commercial  intercourse  may  safely  be  renewed ;  and  also  to  revoke 
such  order  whenever,  in  his  opinion,  the  interest  of  the  United 
States  shall  require;  and  he  shall  be,  and  hereby  is,  authorized 
to  make  proclamation  thereof  accordingly. ' ' 49  Under  this  act, 
on  June  26,  1799,  and  May  21,  1800,  proclamations  were  issued 
by  the  President  declaring  it  lawful  for  vessels  departing  from 
the  United  States  to  enter  certain  ports  of  San  Domingo.50 

§  77.  Suspension  of  act  prohibiting  imports. — Congress  passed 
an  act,  approved  April  18,  1806,  making  it  unlawful  to  import  into 
the  United  States  from  any  port  or  place  in  Great  Britain  or 
Ireland;  or  in  any  of  the  colonies  or  dependencies  of  Great  Britain, 
articles  of  which  leather,  silk,  hemp,  flax,  tin,  or  brass  was  the 
material  of  chief  value,  woolen  cloths  whose  invoice  prices  ex- 
ceeded five  shillings  sterling  per  square  yard,  woolen  hosiery, 
manufactures  of  glass,  silver  and  plated  wares,  hats,  nails,  spikes, 
ready-made  clothing,  millinery,  beer,  ale,  porter,  pictures  and 
prints.51  By  the  subsequent  act  of  December  19,  1806,  the  opera- 
tion of  the  act  above  mentioned  was  suspended,  with  a  section 

48  1    Stats,    at   Large,    565.  B0  9    Life     and     Works     of     John 

49  1  Stats,  at  Large,  613.  Adams,  176,  177. 

51  2   Stats,  at  Large,  379. 


79  SUSPENSION   OF   ACT   PROHIBITING   IMPORTS.  [§    78 

that  the  President  was  authorized  "to  suspend  the  operation  of 
the  aforesaid  act,  if  in  his  judgment  the  public  interest  should 
require  it ;  provided  that  such  suspension  shall  not  extend  beyond 
the  second  Monday  in  December  next."52  In  1815  an  act  was 
passed  providing  that  so  much  of  the  several  acts  imposing  duties 
on  the  tonnage  of  ships  and  vessels,  and  on  goods,  wares  and 
merchandise  imported  into  the  United  States,  as  imposed  a  dis- 
criminating duty  on  tonnage,  between  foreign  vessels  and  vessels 
of  the  United  States,  and  between  goods  imported  into  the  United 
States  in  foreign  vessels  and  vessels  of  the  United  States,  should 
be  repealed,  so  far  as  the  same  respected  the  produce  or  manufac- 
ture of  the  nation  to  which  such  foreign  ships  or  vessels  belonged. 
But  it  was  provided  that  such  repeal  should  take  effect  in  favor 
of  any  foreign  nation  "whenever  the  President  of  the  United 
States  shall  be  satisfied  that  the  discriminating  or  countervailing 
duties  of  such  foreign  nation  so  far  as  they  operate  to  the  disad- 
vantage of  the  United  States"  had  been  abolished.53  President 
Monroe  received  satisfactory  evidence  from  the  Free  City  of 
Bremen  that  after  a  certain  date  all  discriminating  or  counter- 
vailing duties  of  the  city,  so  far  as  they  operated  to  the  disad- 
vantage of  the  United  States,  had  been  abolished.  Accordingly, 
on  July  24,  1818,  he  issued  a  proclamation  declaring  that  the  acts 
of  Congress  upon  that  subject  were  repealed  so  far  as  they  related 
to  the  produce  and  manufactures  of  that  city,  and  he  issued  sim- 
ilar proclamations  relative  to  the  produce  and  manufactures  of 
Hamburg,  Lubeck,  Norway,  and  the  Dukedom  of  Ogdenburg.54 

§  78.  Same  subject — Continued.— The  act  of  March  3,  1817, 
prohibited  the  importation  into  the  United  States,  in  any  foreign 
vessel,  after  the  fourth  day  of  July  of  that  year,  of  plaster  of 
paris,  the  production  of  any  country  or  its  dependencies  from 
which  the  vessels  of  the  United  States  were  not  permitted  to  bring 
the  same  article.  The  act,  by  its  terms,  w^as  to  continue  in  force 
for  five  years  from  a  certain  date,  with  the  provision  that  "if 
any  foreign  nation  or  its  dependencies  which  have  now  in  force 
regulations  of  the  subject  of  the  trade  in  plaster  of  paris,  pro- 
hibiting the  exportation  thereof  to  certain  ports  of  the  United 

52  2  Stats,  at  Large,  411.  M  3   Stats.  App.   1. 

53  3   Stats,  at  Large,  224. 


§    78]  MAKING  OF   TREATIES.  80 

States,  shall  discontinue  such  regulations,  the  President  of  the 
United  States  is  hereby  authorized  to  declare  that  fact  by  his 
proclamation,  and  the  restrictions  imposed  by  this  act  shall,  from 
the  date  of  such  proclamation,  cease,  and  be  discontinued  in  rela- 
tion to  the  nation,  or  its  dependencies,  discontinuing  such  regula- 
tions."  55  In  pursuance  of  this  provision  President  Monroe  issued 
proclamations  respecting  the  trade  with  Nova  Scotia  and  New 
Brunswick.56 

An  act  approved  January  7,  1824,  relating  to  discriminating 
duties  of  tonnage  and  impost,  provided  that  "upon  satisfactory 
evidence  being  given  to  the  President  of  the  United  States,  by  the 
government  of  any  foreign  nation,  that  no  discriminating  duties 
of  tonnage  or  impost  are  imposed  or  levied  within  the  ports  of 
the  said  nation,  upon  vessels  wholly  belonging  to  citizens  of  the 
United  States,  or  upon  merchandise,  the  produce  or  manufacture 
thereof,  imported  in  the  same,  the  President  is  hereby  authorized 
to  issue  his  proclamation,  declaring  that  the  foreign  discriminat- 
ing duties  of  tonnage  and  impost  within  the  United  States  are, 
and  shall  be,  suspended  and  discontinued,  so  far  as  respects  the 
vessels  of  the  said  nation,  and  the  merchandise  of  its  produce  or 
manufacture,  imported  into  the  United  States  in  the  same;  the 
said  suspension  to  take  effect  from  the  time  of  such  notification 
being  given  to  the  President  of  the  United  States,  and  to  continue 
so  long  as  the  reciprocal  exemption  of  vessels  belonging  to  the 
citizens  of  the  United  States,  and  merchandise,  as  aforesaid, 
thereon  laden,  shall  be  continued,  and  no  longer.57  The  statute 

55  3   Stats,  at  Large,   361.  4,  1847,  9  Stats.  App.  1001.     By  Fill- 

56  3  Stats.  App.    1.  more,    November    1,    1850,    9    Stats. 
5T  4  Stats,  at  Large,  3.     The  act  of       App.   1004.     By  Buchanan,  February 

May    24,    1828,    contained    a    similar  25,    1858,    11    Stats.    App.    795.     By 

section.     4  Stats  at  Large,  308.     See,  Lincoln,  December  16,  1863,  13  Stats, 

also,   U.    S.    Eev.    Stats.,    sec.   4228.  App.    739.     By     Johnson,     December 

The     following     proclamations     were  28,    1886,   and  January   29,   1867,   14 

issued  by  the  Presidents  of  the  United  Stats.     App.     818,    819.     By    Grant, 

States  in  execution  of  these  acts:   By  June    12,    1869,    November    20,    1869, 

Adams,  July  21,  1828,  4  Stats.  App.  February     25,     1871,     December     19, 

815.     By  Jackson,  May  11,  1829,  June  1871,   September   4,   1872,   and  Octo- 

3,    1829,    September    18,    1830,    April  ber   30,    1872,    16    Stats.    App.    1127- 

28,   1835,   and   September   1,   1836,   4  1137;    17    Stats.    App.    954-957.     By 

Stats.  App.  814,  815,  816;    11  Stats.  Hayes,  November  30,  1880,  21  Stats. 

App.   781,   782.     By  Polk,  November  at   Large,    800. 


81  IMPORTATION  OF  NEAT  CATTLE.  [§    79 

of  May  31,  1830,  repealed  all  acts  and  parts  of  acts  imposing 
duties  upon  the  tonnage  of  ships  and  vessels  of  foreign  nations, 
but  provided  that  the  President  of  the  United  States  should  be 
satisfied  of  the  abolition  of  the  discriminating  or  countervailing 
duties  of  such  foreign  nations  to  the  extent  to  which  they  oper- 
ated to  the  disadvantage  of  the  United  States.58 

President  Pierce,  pursuant  to  the  act  of  Congress  of  August  5, 

1854,  effectuating  the  treaty  between  the  United  States  and  Great 
Britain,  of  June  5,  1854,  issued  a  proclamation  on  December  12, 

1855,  declaring  that  he  had  received  satisfactory  evidence  that 
the  province  of  Newfoundland  had  consented  in  a  due  and  proper 
manner  to  have  the  provisions  of  the  treaty  extended  to  it,  and 
to  allow  the  United  States  the  benefit  of  all  its  stipulations  so  far 
as  they  were  applicable,  and,  therefore,  that  certain  articles  speci- 
fied in  the  treaty  should  be  admitted  from  that  province  free  of 
duty.59 

§  79.  Importation  of  neat  cattle. — Congress,  by  an  act  ap- 
proved March  6,  1866,  prohibited  the  importation  of  neat  cattle 
and  the  hides  of  neat  cattle  from  any  foreign  country  into  the 
United  States,  but  provided  in  the  act  that  its  operation  might 
be  suspended  as  to  any  foreign  country  or  countries,  or  any 
parts  of  such  country  or  countries,  whenever  the  Secretary  of  the 
Treasury  should  officially  determine,  and  give  public  notice  there- 
of, that  such  importation  would  not  tend  to  the  introduction  or 
spread  of  contagious  or  infectious  diseases  among  the  cattle  of 
the  United  States.  The  act  also  provided  that  ''the  President  of 
the  United  States,  whenever  in  his  judgment  the  importation  of 
neat  cattle  and  the  hides  of  neat  cattle  may  be  made  without 
danger  of  the  introduction  or  spread  of  contagious  or  infectious 
disease  among  the  cattle  of  the  United  States,  may,  by  proclama- 
tion, declare  the  provisions  of  this  Act  to  be  inoperative,  and 
the  same  shall  be  afterward  inoperative  and  of  no  effect  from 
and  after  thirty  days  from  the  date  of  said  proclamation. ' ' 60 

These  provisions  were  embodied  in  sections  2493  and  2494 
of  the  Revised  Statutes  until  the  passage  of  the  act  of  March  3, 

58  4  Stats,  at  Large,  425.     Section  M  10  Stats,  at  Large,  587;  11  Stats. 

4:H9   of   the    Eevised    Statutes    con-  at    Large,    790. 

tinues   this   provision.  eo  14  Stats,   at  Large,   3. 
Treaties — 6 


§    80]  MAKING  OF  TREATIES.  82 

1883.61  The  tariff  act  of  1890  also  prohibits  the  importation  of 
neat  cattle  and  the  hides  of  neat  cattle  from  foreign  countries, 
but  confers  authority  upon  the  Secretary  of  the  Treasury  to 
suspend  the  operation  of  the  act  as  to  any  country  when  he  may 
determine  that  such  importation  will  not  lead  to  the  introduction 
or  spread  of  contagious  or  infectious  diseases  among  the  cattle 
of  the  United  States.62 

§  80.  Products  of  Cuba  and  Porto  Rico.— President  Arthur, 
acting  under  the  authority  of  section  4228  of  the  Revised  Stat- 
utes, issued  a  proclamation  by  which  he  declared  that  after  the 
first  day  of  March,  1884,  duties  on  the  products  of,  and  articles 
proceeding  from,  Cuba  and  Porto  Rico  under  the  Spanish  flag 
should  be  suspended  and  discontinued  so  long  as  the  products  of, 
and  articles  proceeding  from,  the  United  States,  imported  into 
those  islands  should  be  exempt  from  discriminating  customs 
duties.63  President  Cleveland,  upon  the  ground  that  higher  and 
discriminating  duties  continued  to  be  imposed  and  levied  in 
these  ports  upon  certain  produce,  manufactures  and  merchandise 
imported  into  them  from  the  United  States  and  from  foreign 
countries,  in  vessels  of  the  United  States,  than  were  imposed 
and  levied  on  like  produce,  manufactures  and  merchandise  car- 
ried to  those  ports  in  Spanish  vessels,  revoked  by  proclamation 
the  suspension  made  by  President  Arthur.64 

An  act  of  Congress,  passed  in  1884,  removed  certain  burdens 
on  the  American  merchant  marine,  and  for  the  purpose  of  en- 
couraging the  American  foreign  carrying  trade  imposed  certain 
tonnage  duties  upon  vessels  entering  the  United  States  from  any 
certain  foreign  ports.  The  President,  however,  was  given  au- 
thority to  suspend  the  collection  of  so  much  of  those  duties, 
entering  from  certain  ports,  as  might  be  in  excess  of  the  tonnage 
and  lighthouse  dues,  or  other  equivalent  tax,  imposed  on  Amer- 
ican vessels  by  the  government  of  the  foreign  country  in  which 
such  port  was  situated,  and  he  was  empowered  upon  the  passage 
of  the  act,  "and  from  time  to  time  thereafter  as  it  may  become 
necessary  by  reason  of  changes  in  the  laws  of  the  foreign  coun- 

61  22   Stats,  at   Large,   489,   c.   121,  e:<  23   Stats,   at  Large,  835. 

sec.  6.  "  24  Stats,   at  Large,   1028. 

e2  26  Stats,  at  Large,  616,  c.  1244, 

sec.  20. 


83  APPROPRIATION  OF   MONEY.  [§    81 

tries  above  mentioned,  to  indicate  by  proclamation  the  ports  to 
which  such  suspension  shall  apply,  and  the  rate  or  rates  of  ton- 
nag%e  duty,  if  any,  to  be  collected  under  such  suspension."65 
Both  Presidents  Arthur  and  Cleveland  suspended  by  proclama- 
tion the  collection  of  duties  on  goods  arriving  from  the  certain 
mentioned  ports.66 

§  81.  Appropriation  of  money.— At  one  time  it  was  contended 
that  if  a  treaty  was  made  by  the  United  States  providing  for 
the  appropriation  of  money,  the  consent  of  the  House,  of  Repre- 
sentatives was  necessary  to  carry  the  treaty  into  effect,  and  that 
the  power  of  the  House  to  grant  or  refuse  an  appropriation  for 
the  purpose  was  as  well  known  to  the  other  contracting  party  as 
was  the  consent  of  the  Senate  to  the  preliminary  adoption  of  the 
treaty.  Acting  on  the  assumption  that  the  House  was  free,  if 
so  disposed,  to  refuse  appropriation  to  effectuate  a  treaty,  and 
might  itself  determine  whether  the  treaty  should  be  made,  the 
House,  on  March  24,  1796,  asked  the  President  for  the  facts 
relative  to  Jay's  treaty,  the  ratification  of  which  was  proclaimed 
by  the  President  on  February  29,  1796,  and  the  proclamation  was 
communicated  on  March  1,  1796,  to  the  two  branches  of  Con- 
gress. President  Washington  declined  to  comply  with  the  re- 
quest, saying:  "Having  been  a  member  of  the  general  conven- 
tion, and  knowing  the  principles  on  which  the  Constitution  was 
formed,  I  have  ever  entertained  but  one  opinion  on  this  subject; 
and  from  the  first  establishment  of  the  government  to  this 
moment,  my  conduct  has  exemplified  that  opinion,  that  the  power 
of  making  treaties  is  exclusively  vested  in  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  provided  two-thirds 
of  the  Senators  present  concur;  and  that  every  treaty  so  made 
and  promulgated  thenceforward  became  the  law  of  the  land.  It 
is  thus  that  the  treaty-making  power  has  been  understood  by 

65  23    Stats,    at   Large,    57.  v.  Laird,  1  Cranch,  299,  2  L.  ed.  115; 

60  23  Stats,  at  Large,  841,  842,  844.  Martin  v.  Hunter,  1  Wheat.  304,  4 
A  practical  construction  of  the  Con-  L.  ed.  97;  Cooley  v.  Port  Wardens,  12 
stitution  as  manifested  by  many  How.  299,  13  L.  ed.  996;  Burrow- 
acts  of  Congress  covering  a  long  Giles  Lithographic  Co.  v.  Sarony,  111 
period  of  time  should  not  be  over-  U.  S.  53,  4  Sup.  Ct.  Kep.  279,  28  L. 
ruled,  unless  the  court  is  convinced  ed.  349;  The  Laura,  114  U.  S.  411, 
that  such  legislation  is  clearly  incom-  5  Sup.  Ct.  Eep.  881,  29  L.  ed.  147. 
patible  with  the  Constitution.  Stuart 


§§    82,    83]  MAKING  OP  TREATIES.  84 

foreign  nations,  and  in  all  the  treaties  made  with  them  we  have 
declared  and  they  have  believed,  that,  when  ratified  by  the  Pres- 
ident, with  the  advice  and  consent  of  the  Senate,  they  became 
obligatory."  He  stated  further  that  it  was  clear  to  his  under- 
standing that  the  assent  of  the  House  was  not  necessary  to  the 
validity  of  a  treaty,  and  "as  the  treaty  with  Great  Britain  ex- 
hibits in  itself  all  the  objects  requiring  legislative  provision,  and 
on  these  the  papers  called  for  can  throw  no  light;  and  as  it  is 
essential  to  the  due  administration  of  the  government  that  the 
boundaries  fixed  by  the  Constitution  between  the  different  de- 
partments should  be  preserved,  a  just  regard  to  the  Constitution 
and  to  the  duty  of  my  office,  under  all  the  circumstances  of  this 
case,  forbids  a  compliance  with  your  request."67 

Mr.  Gushing,  attorney  general,  said  that  although  it  may  be 
necessary  for  Congress  in  its  legislative  capacity  to  carry  into 
effect  a  treaty  that  had  received  the  approval  of  the  President 
and  Senate,  such  action  should,  under  ordinary  circumstances, 
be  deemed  to  be  a  political  duty,  and  that  such  legislative  assist- 
ance had  at  no  time  been  refused.68 

§  82.  Moral  obligation. — A  treaty  requiring  to  carry  it  into 
effect  the  payment  of  money  which  can  be  appropriated  only 
by  an  act  of  the  legislature,  places  upon  Congress  a  moral  obli- 
gation to  pass  the  necessary  laws  for  that  purpose.  A  refusal 
so  to  do  would  be  to  break  the  public  faith,  and  would  give 
a  good  and  sufficient  cause  of  war.  The  executive  department 
on  which  is  conferred  the  right  of  treating  and  contracting  with 
other  sovereignties  must  be  deemed  to  be  invested  with  all  the 
power  necessary  to  make  a  valid  contract  and  as  competent  to 
bind  at  its  discretion  the  national  faith.69 

§  83.  Alaska  purchase. — The  treaty  of  1868  with  Russia  for 
the  cession  of  Alaska  provided  that  Russia  should  receive  an 
indemnity  of  $7,200,000.  At  the  session  following  the  proclama- 

e7  1  Kichardson's  Messages,  195.  exigencies,  and  necessarily  involves  in 

68  6  Op.  Atty.  Gen.  296.  it  every  portion  of  the  national  sover- 

89  Duer's  Outlines  of  Constitutional  eignty  of  which  the  co-operation  may 

Jurisprudence   of   the   United   States,  be  necessary  to  give  effect  to  negotia- 

138.     "The   power   to   make   treaties  tions  and  contracts  with  foreign  na- 

must   be  coextensive  with  the  national  tions. ' '    Id. 


85  ALASKA  PURCHASE.  [§    83 

tion  of  the  treaty,  when  the  question  of  making  the  appropriation 
arose,  there  appeared  a  division  of  opinion,  the  majority  of  the 
Committee  of  Foreign  Affairs  of  the  House  of  Representatives 
reporting  a  bill  making  the  necessary  appropriation,  while  a 
report  was  made  by  a  minority  of  the  committee  recommending 
the  rejection  of  the  purchase.  The  report  of  the  majority  ad- 
mitted that  there  were  cases  in  which  the  House  would  be 
justified  in  withholding  its  assent,  but  held  that  such  right 
would  exist  only  in  cases  plainly  incompatible  "with  the  funda- 
mental principles,  purposes  or  interests  of  the  Constitution"; 
but  that  where  it  is  limited  to  objects  consistent  with  the  interests 
of  the  government,  "its  first  and  highest  duty  is  to  enact  such 
measures  as  are  necessary  to  carry  the  treaty  into  effect. ' '  After 
considerable  debate,  an  amendment  was  passed  by  the  House,  in 
which  it  was  recited  that  the  subjects  "embraced  in  the  stipula- 
tions of  said  treaty  are  among  the  subjects  which,  by  the  Consti- 
tution of  the  United  States,  are  submitted  to  the  power  of  Con- 
gress, and  over  which  Congress  has  jurisdiction;  and  it  being 
for  such  reason  necessary  that  the  consent  of  Congress  should 
be  given  to  said  stipulation  before  the  same  can  have  full  force 
and  effect,  having  taken  into  consideration  the  said  treaty,  and 
approving  of  the  stipulations  therein,  to  the  end  that  the  same 
may  be  carried  into  effect,"  it  was  enacted:  "That  the  assent 
of  Congress  is  hereby  given  to  the  stipulations  of  said  treaty." 
The  Senate,  by  restoring  the  bill  to  its  original  form,  rejected  the 
position  of  the  House  that  it  was  essential  to  have  the  consent 
of  Congress  as  a  legislative  body  to  the  payment  of  money  and 
the  incorporation  of  territory  when  provided  for  by  a  treaty, 
and  finally  the  bill  was  sent  to  a  committee  of  conference,  which 
agreed  on  a  bill  which  recited  the  making  of  the  treaty  "by 
the  terms  of  which  it  was  stipulated  that  in  consideration  of 
the  cession  by  the  Emperor  of  Russia  to  the  United  States  of 
certain  territory  therein  described,  the  United  States  should 
pay  to  the  Emperor  of  Russia,  the  sum  of  $7,200,000  in  coin ;  and 
whereas  it  was  further  stipulated  in  said  treaty  that  the  United 
States  shall  accept  such  cession,  and  that  certain  inhabitants  of 
said  territory  shall  be  admitted  to  the  enjoyment  of  all  the  rights 
and  immunities  of  citizens  of  the  United  States;  and  whereas 
said  stipulations  cannot  be  carried  into  full  force  and  effect  ex- 
cept by  legislation  to  which  the  consent  of  both  Houses  of  Con- 


§§    84,    85]  MAKING  OF  TREATIES.  86 

gress  is  necessary."  It  was  therefore  resolved:  "That  there  be, 
and  hereby  is,  appropriated  from  any  money  in  the  Treasury 
not  otherwise  appropriated  $7,200,000  in  coin,  to  fulfill  stipula- 
tions contained  in  the  sixth  article  of  the  treaty,"  etc.70  Mr. 
Crandall,  in  his  work  on  Treaties,  says:  "That  Congress  is  un- 
der no  obligation  to  make  the  stipulated  appropriation  has  not 
been  seriously  advanced  by  the  House  since  1868,  although  in- 
dividual advocates  of  this  view  have  not  been  wanting."71 

§  84.  Porto  Rico  as  foreign  territory. — In  a  case  involving 
the  question  whether  Porto  Rico  after  its  cession  to  the  United 
States  by  the  treaty  with  Spain  was  foreign  country  within  the 
meaning  of  the  tariff  act,  the  supreme  court  of  the  United  States 
said:  "It  may  undoubtedly  become  necessary  for  the  adequate 
administration  of  a  domestic  territory  to  pass  a  special  act  pro- 
viding the  proper  machinery  and  officers,  as  the  President  would 
have  no  authority,  except  under  the  war  power,  to  administer  it, 
himself;  but  no  act  is  necessary  to  make  it  domestic  territory,  if 
once  it  has  been  ceded  to  the  United  States.  We  express  no 
opinion  as  to  wrhether  Congress  is  bound  to  pay  for  it.  This  has 
been  much  discussed  by  writers  upon  constitutional  law,  but  it  is 
not  necessary  to  consider  it  in  this  case,  as  Congress  made  prompt 
appropriation  of  the  money  stipulated  in  the  treaty. ' '  72 

§  85.  Treaty  dependent  upon  legislative  action. — A  treaty  will 
operate  immediately  on  all  matters  not  requiring  legislative  ac- 
tion, but  if  its  operation  is  made  dependent  on  legislative  action, 
it  does  not  become  operative  until  such  action  is  taken.73  It  is 
to  be  presumed  that  every  foreign  government  knows  that  where 
a  stipulation  is  contained  in  a  treaty  providing  for  the  payment 
of  money  it  is  necessary  to  have  legislative  sanction.74 

70  Cong.  Globe,  1867-68,  4031,  4159,  man,  7  Pet.  51,  8  L.  ed.  604;  Garcia 
4392;   Wharton's  Int.  Law  Dig.,  sec.  v.  Lee,  12  Pet.    511,  9  L.    ed.  1176; 
131a,    II,    21.  Haver  v.  Yaker,  9  Wall.  32,  19  L.  ed. 

71  CrandalPs    Treaties,  Their  Mak-  571;   Turner  v.  Baptist  Union,  5  Mc- 
ing    and    Enforcement,    132.  Lean,  344,  25  Fed.   Gas.  No.  14,250; 

72  De  Lima  v.   Bidwell,   182   U.    S.  Bartram  v.   Kobertson,   15   Fed.   212, 
1,   198,   21  Sup.  Ct.  Eep.  743,  45  L.  21    Blatchf.    211. 

ed.    1041,   1056.  74  Turner  v.  Baptist  Union,   5  Mc- 

73  Foster  v.  Neilson,  2  Pet.  253,  ?       Lean,  347,  Fed.  Gas.  No.  14,250. 
U  ed.  4il;  United  States  v.  Perche- 


87  TIME  WHEN   TREATY   TAKES  EFFECT.  [§    86 

CHAPTER  V. 

TAKING   EFFECT   AND    TERMINATION  OF   TREATIES. 

§  86.  Time  when  treaty  takes  effect. 

§  87.  Sovereignty  transferred  at  date  of  treaty. 

§  88.  Postponing  operation  until  approval  of  Congress. 

§  89.  Question  before  the  court. 

§  90.  Reasoning  of  the  court. 

§  91.  Effect  on  individual  rights. 

§  92.  Retroactive  effect. 

§  93.  Authority  of  courts. 

§  94.  Construction  of  treaty      province  of  courts. 

§  95.  Termination  of  treaties. 

§  96.  Question  a  political  one. 

§  97.  Violation  of  treaty  by  one  nation. 

§  98.  Termination  of  treaties  by  notice. 

§  99.  Subject  matter  covered  by  later  treaty. 

§  86.  Time  when  treaty  takes  effect. — Unless  some  provision 
is  made  to  the  contrary,  a  treaty  becomes  binding  on  the  re- 
spective governments  from  the  date  of  its  signature.  The  ex- 
change of  ratifications  has  a  retroactive  operation.1  "All  trea- 
ties, as  well  those  for  cessions  of  territories  as  for  other  pur- 
poses, are  binding  upon  the  contracting  parties,  unless  when 
otherwise  provided  in  them  from  the  day  they  are  signed.  The 
ratification  of  them  relates  back  to  the  time  of  signing/'2  The 
treaty  between  Spain  and  the  United  States  was  signed  Decem- 
ber 10,  1898,  but  ratifications  were  not  exchanged  until  April  11, 
1899.  Still  the  act  of  March  3,  1899,  which  prohibited  unau- 
thorized obstructions  to  navigation  in  the  waters  of  the  United 
States,  was  considered  to  apply  to  the  navigable  waters  of  Porto 
Rico.3 

1  Davis      v.     Concordia,     9     How.  571;  United  States  v.  Reynes,  9  How. 
(U.    S.)     280,    13    L.    ed.    138;    Hyl-  127,  13  L.  ed.  74;  Davis  v.  Concordia, 
ton   v.    Brown,    1    Wash.     C.    C.    343,  9  How.  280,  13  L.  ed.  1041;  Downes 
Fed.    Cas.    No.    6982.  v.  Bidwell,  182  U.  S.  1,  200,  21  Sup. 

2  Davis  v.   Concordia,   9   How.    (U.  Ct.  Rep.  743,  45  L.  ed.  1041;  Downes 
S.)    280,  13  L.  ed.  138,  per  Wayne,  J.  v.  Bidwell,  182  U.  S.  244,  247,  21  Sup. 

3  Knox,  Attorney  General,  October  Ct.  Rep.  770,  45  L.  ed.  1088;  Dooley 
17, 1901,   551,  558,  citing  United  States  v.  United  States,  182  U.  S.  222,  230, 
v.  Arredondo,  6  Pet.  691,  8  L.  ed.  547;  21  Sup.  Ct.  Rep.  762,  45  L.  ed.  1074; 
Haver  v.  Yaker,  9  Wall.  32,  19  L.  ed.  Halleck  Int.  Law,  815. 


§§    87,    88]       TAKING   EFFECT   AND    TERMINATION    OF    TREATIES.  88 

§  87.  Sovereignty  transferred  at  date  of  treaty. — As  a  treaty 
transfers  sovereignty  on  the  day  of  its  date,  the  grant  of  a  per- 
petual franchise  by  the  Spanish  governor  of  Louisiana  after  the 
treaty  by  which  Spain  ceded  Louisiana  to  France,  is  void.4  Unless 
a  different  time  is  fixed  by  the  governments  making  the  treaty  or 
must  be  adopted  to  fulfill  their  manifest  intention,  a  treaty  will 
take  effect  from  its  date  irrespective  of  its  ratification.5  If  a 
treaty  is  made  dependent  on  legislative  action,  it  does  not  become 
operative  until  such  action.6  A  provision  contained  in  a  treaty 
with  an  Indian  tribe,  that  it  should  be  obligatory  as  soon  as  it 
should  be  ratified  by  the  President  and  Senate,  will  postpone  its 
taking  effect  until  signed  by  the  President,  though  it  had  been 
previously  ratified  by  the  Senate  and  accepted  by  the  Indians.7 

§  88.  Postponing  operation  until  approval  of  Congress.- — 
Where  an  amendment  is  added  to  a  treaty,  by  the  Senate,  de- 
claring that  it  shall  not  take  effect  until  approved  by  Congress,  th* 
date  when  the  treaty  will  become  effective  will  be  fixed,  not  by  a  pro- 
vision contained  in  it  that  it  shall  become  operative  within  a 
certain  time  after  exchange  of  ratifications,  but  will  depend  upon 
the  passage  of  an  act  by  Congress.8 

The  treaty  with  Cuba  contained  a  clause  that:  "The  present 
convention  shall  be  ratified  by  the  appropriate  authorities  of 
the  respective  countries,  and  the  ratifications  shall  be  exchanged 
at  Washington,  District  of  Columbia,  United  States  of  America, 
as  soon  as  may  be  before  the  thirty-first  day  of  January,  1903, 
and  the  convention  shall  go  into  effect  on  the  tenth  day  after  the 
exchange  of  ratifications,  and  shall  continue  in  force  for  the  term 
of  five  (5)  years  from  the  date  of  going  into  effect,  and  from 
year  to  year  thereafter,  until  the  expiration  of  one  year  from 
the  day  when  either  of  the  contracting  parties  shall  give  notice 

4  Davis  v.   Concordia,   9  How.    (50  ed.  571;    Turner  v.  Baptist  Union,  5 
U.  S.)    280,  13  L.  ed.  138.  McLean,   344   Fed.    Gas.   No.   14,250; 

5  In    re    Metzger,     Fed.     Gas.    No.  Bartram  v.  Eobertson,  15  Fed.  212,  21 
9511.  Blatchf.   211. 

6  Foster  v.  Neilson,  2  Pet.   253,   7  7  Shepard     v.     Northwestern     Life 
L.  ed.  415;  United  States  v.  Perche-  Ins.  Co.,  40  Fed.  341. 

man,  7  -fet.  51,  8  L.  ed.  604;  Garcia  8  United  States  v.  American  Sugar 

v.  Lee,   12  Pet.  511,  9  L.  ed.   1176;       Kenning  Co.,  202  U.  S.  563,  26  Sup. 
Haver  v.   Yaker,   9   Wall.   32,   19   L.       Ct.  Eep.  717,  50  L.  ed.  1149. 


89         POSTPONING  OPERATION   UNTIL   APPROVAL   OF   CONGRESS.       [§    88 

to  the  other  of  its  intention  to  terminate  the  same."9  The 
Senate  added  this  amendment:  "This  convention  shall  not  take 
effect  until  the  same  shall  have  been  approved  by  the  Congress." 
Ratifications  were  exchanged  on  March  31,  1903,  at  which  time 
Congress  was  not  in  session,  but  Congress  was  convened  in  spe- 
cial session  November  9,  1903,  and  on  December  17,  1903,  passed 
an  act  to  carry  into  effect  the  convention,  which  provided  in 
section  1:  "That  whenever  the  President  of  the  United  States 
shall  receive  satisfactory  evidence  that  the  Republic  of  Cuba  has 
made  provision  to  give  full  effect  to  the  articles  of  convention 
between  the  United  States  and  the  Republic  of  Cuba,  signed  on 
the  eleventh  day  of  December,  in  the  year  nineteen  hundred  and 
two,  he  is  hereby  authorized  to  issue  his  proclamation,  declaring 
that  he  has  received  such  evidence,  and,  thereupon,  on  the  tenth 
day  after  exchange  of  ratifications  of  such  convention  between  the 
United  States  and  the  Republic  of  Cuba,  and  so  long  as  the  said 
convention  shall  remain  in  forcet  all  articles  of  merchandise  being 
the  product  of  the  soil  or  industry  of  the  Republic  of  Cuba,  which 
are  now  imported  into  the  United  States  free  of  duty,  and  all 
other  articles  of  merchandise  being  the  product  of  the  soil  or 
industry  of  the  Republic  of  Cuba  imported  into  the  United  States 
shall  be  admitted  at  a  reduction  of  twenty  per  centum  of  the  rates 
of  duty  thereon,  as  provided  by  the  tariff  act  of  the  United  States 
approved  July  twenty-fourth,  eighteen  hundred  and  ninety-seven, 
or  as  may  be  provided  by  any  tariff  law  of  the  United  States 
subsequently  enacted.  The  rates  of  duty  herein  granted  by  the 
United  States  to  the  Republic  of  Cuba,  are  and  shall  continue, 
during  the  term  of  said  convention,  preferential  in  respect  to  all 
like  imports  from  other  countries;  Provided,  That,  while  said 
convention  is  in  force,  no  sugar  imported  from  the  Republic  of 
Cuba,  shall  be  admitted  into  the  United  States  at  a  reduction 
of  duty  greater  than  twenty  per  centum  of  the  rates  of  duty 
thereon,  as  provided  by  the  tariff  act  of  the  United  States  ap- 
proved July  twenty-fourth,  eighteen  hundred  and  ninety-seven, 
and  no  sugar  the  product  of  any  other  foreign  country  shall  be 
admitted  by  treaty  or  convention  into  the  United  States  while 
this  convention  is  in  force  at  a  lower  rate  of  duty  than  that  pro- 
vided by  the  tariff  act  of  the  United  States  approved  July  twenty- 
fourth,  eighteen  hundred  and  ninety-seven;  And  provided,  fur- 

9  33  Stats,  at  Large,  2136. 


§§    89,    90]       TAKING    EFFECT    AND    TERMINATION    OF    TREATIES.  90 

ther,  that  nothing  herein  contained  shall  be  held  or  construed 
as  an  admission  on  the  part  of  the  House  of  Representatives  that 
customs  duties  can  be  changed  otherwise  than  by  an  act  of  Con- 
gress originating  in  said  House." 

The  President  issued  his  proclamation  on  the  day  of  the  pas- 
sage of  this  act,  setting  forth  the  treaty  and  the  act  of  Con- 
gress, and  declaring  that  he  had  received  satisfactory  evidence 
that  the  Eepublic  of  Cuba  had  made  provision  to  give  full  ef- 
fect to  the  articles  of  the  convention,  and  declaring  and  proclaim- 
ing "the  said  convention  as  amended  by  the  Senate  of  the  United 
States  to  be  in  effect  on  the  tenth  day  from  the  date  of  this,  my 
proclamation. ' ' 10 

§  89.  Question  before  the  court. — The  question  before  the 
court  was  whether  a  certain  quantity  of  sugar  imported  be- 
tween the  12th  of  June  and  the  28th  of  September,  1903, 
should  be  charged  with  full  duties  under  the  tariff  act,  or  was  en- 
titled to  a  reduction  of  twenty  per  cent  prescribed  by  that  act, 
under  the  treaty  and  the  act  of  Congress.  The  solution  of  the 
question  depended  upon  the  date  when  the  treaty  became  effec- 
tive. The  court  held  that  the  reduction  of  twenty  per  cent  in 
the  duties  imposed  by  the  tariff  act  did  not  become  operative 
until  December  27,  1903,  the  date  proclaimed  by  the  President  of 
the  United  States  and  the  President  of  the  Cuban  republic  for 
the  commencement  of  the  operation  of  the  treaty.11 

§  90.  Reasoning  of  the  court. — In  the  lower  court  the  view 
taken  was  that  owing  to  the  language  of  the  treaty  as  to  the 
time  at  which  it  should  take  effect,  it  was  intended  to  have  a 
retroactive  operation,  and  was  intended  to  relate  to  merchandise 
imported  from  Cuba  ten  days  or  more  after  the  exchange  of  rati- 
fications.12 The  supreme  court  of  the  United  States  said,  how- 
ever, that  between  the  treaty  and  the  amendment  there  was  an 
emphatic  difference.  "The  date  at  which  the  instrument  should 
go  into  effect  was  changed.  It  cannot  be  said  that  the  treaty 

10  33  Stats,  at  Large,  2136.  States,    202   U.    S.    580,    26    Sup.    Ct. 

11  United  States  v.  American  Sugar  Eep.  720,  50  L.  ed.  1153. 
Refining  Co.,  202  U.  S.  563,  26  Sup.  12  American   Sugar  Eefining  Co.   v. 
Ct.  Rep.  717,  50  L.  ed.  1149 ;  Frank-  United  States,  136  Fed.  508. 

T.n    Sugar     Refining     Co.    v.     United 


91  REASONING  OF  THE  COURT.  [§    90 

provision  related  to  time  and  the  amendment  to  sanction  merely, 
and  adopted  the  time  of  the  treaty.  To  do  this  would  be  to  in- 
terpret the  words  of  the  treaty  one  way  and  the  same  words  in 
the  amendment  another  way.  We  start,  then,  with  the  proposi- 
tion that  not  the  treaty,  but  the  act  of  Congress,  was  to  fix  the 
date  that  the  treaty  should  take  effect.  What  date  Congress 
fixed  is  the  question  to  be  considered.  It  was  certainly  compe- 
tent for  Congress  (with  the  consent  of  Cuba)  to  have  given  the 
treaty  retrospective,  immediate,  or  prospective  operation."  The 
court  said  that  there  was  a  presumption  against  retrospective 
operation,  and  that  words  in  a  statute  should  not  be  so  con- 
strued unless  the  intention  of  the  legislature  cannot  be  other- 
wise satisfied.13  The  court  admitted  that  there  were  words  in 
the  act  of  Congress  which,  if  not  in  themselves,  yet  in  connec- 
tion with  events,  might  be  said  to  look  to  a  retrospective  opera- 
tion. The  words  of  the  act  of  Congress  refer  manifestly  to  an 
event  to  occur,  which  had,  apparently,  already  occurred,  and  it 
was  contended  that  upon  the  happening  of  such  event,  the  treaty 
by  its  own  terms  and  by  the  act  of  Congress  took  effect.  To  this 
contention  the  government  replied  that  as  Congress  was  not  in 
session  at  the  time,  it  was  ignorant  of  the  fact  that  ratifications 
had  been  exchanged,  and  framed  its  legislation  on  the  view  that 
some  further  action  was  required  on  the  part  of  Cuba.  The 
court  on  this  subject  said:  "If  we  may  not  accept  the  explana- 
tion of  Congress'  ignorance,  it  is  not  unreasonable  to  suppose 
that  Congress  considered  it  was  still  open  to  Cuba  to  accept  or 
reject  the  treaty,  and  to  make  sure  of  her  acceptance  before  the 
treaty  should  go  into  effect  in  the  United  States.  This  view 
satisfies  completely  the  text  of  the  act.  We  cannot  suppose  that, 
if  Congress  intended  to  give  retrospective  operation  to  the  act, 
it  would  have  used  the  words  that  expressed  the  contrary.  The 
day  at  which  the  treaty  should  operate  was  important,  and  would 
necessarily  be  ever  present  in  mind,  and  it  was  of  easy  expres- 
sion. Future  time  and  past  time  are  directly  opposite,  and  by  no 
inadvertence  or  intention  can  we  believe  or  suppose  that  Con- 
gress, having  in  mind  and  purpose  the  distinction  between  the 
past  and  the  future,  should  use  language  that  expressed  the  one 
while  it  meant  to  provide  for  the  other. ' ' 

13  Citing    United    States    v.    Burr,    159  U.  S.  78,  15  Sup.  Ct.  Eep.  1002, 
40  L.  ed.  82. 


§    91]  TAKING  EFFECT   AND   TERMINATION   OF   TREATIES.  92 

The  court  also  adverted  to  what  it  declared  was  another  im- 
portant fact:  "The  treaty  was  a  reciprocal  arrangement  and  in- 
tended to  go  into  effect  coincidently  in  the  United  States  and 
Cuba.  The  two  nations  provided  for  this.  On  the  day  the  Presi- 
dent approved  the  act  of  Congress,  he  issued  his  proclamation 
declaring  that  the  treaty  should  go  into  effect  on  the  27th  day  of 
December.  On  the  17th  day  of  December,  the  President  of  Cuba 
also  issued  his  proclamation,  stating  that  Congress  had  approved 
the  treaty  in  accordance  with  the  requirements  of  article  II,  and 
declaring  that  the  treaty  should  take  effect  in  Cuba  on  the  day 
named  on  the  proclamation  of  the  President  of  the  United 
States — December  27,  1903.  This  coincident  operation  is  of  the 
very  essence  of  the  convention.  It  would  indeed  be  anomalous 
if  a  treaty  which  provided  for  reciprocal  concessions  should  be 
in  operation  in  one  nation  eight  months  before  it  was  in  opera- 
tion in  the  other.  And  this  is  not  adequately  answered  as  ap- 
pellee answers  it,  by  saying  that  the  President  of  Cuba  and  the 
President  of  the  United  States  were  both  mistaken  as  to  the  date 
of  the  operation  of  the  treaty,  and  their  mistake  could  not  af- 
fect the  rights  of  importers.  Certainly  not  if  a  mistake  could  be 
conceded.  But  the  action  of  the  Presidents  is  proof  against  the 
existence  of  mistakes.  It  shows  the  understanding  of  the  Execu- 
tives of  the  two  countries,  and  affords  confirmation  of  the  view 
that  Congress  contemplated  action  subsequent  to  its  legislation 
to  put  the  treaty  into  effect. ' ' 14 

§  91.  Effect  on  individual  rights. — But  where  individual  rights 
are  concerned,  the  rule  is  that  a  treaty  does  not  take  effect  until 
the  exchange  of  ratifications.15  Upon  the  cession  by  Spain  of  the 
island  of  Porto  Eico,  the  Constitution  at  once  extended  over  it, 
conferring  among  other  rights  that  of  trial  by  jury  in  criminal 
prosecutions.  But  as  to  private  rights,  the  treaty  became  effec- 
tive only  from  the  time  of  the  exchange  of  ratifications,  and, 
therefore,  a  military  tribunal  of  the  United  States,  established 

14  United  States  v.  American  Sugar  Lessee  of  Hylton  v.  Brown,  1  Wash. 
Kefining  Co.,  202  U.  S.  563,  26  Sup.  C.  C.  343,  Fed.  Gas.  No.  6982;  Haver 
Ct.  Eep.  717,  50  L.  ed.  1149.  v.  Yaker,  9  Wall.  32,  19  L.  ed.  571; 

15  Davis'  Notes,  U.  S.  Treaty,  Vol.  United    States   v.    Arredondo,    6   Pet. 
1776-1887,     1228,     citing     Davis     v.  691,  8  L.  ed.  547.     See,  also,  Bush  v. 
Concordia,  9  How.  280,  13  L.  ed.  138 ;  United  States,  29  Ct.  of  Cl.  144. 


RETROACTIVE    EFFECT.  [§§    92,    93 

luring  the  occupancy  of  the  island  by  the  military  forces  of  the 
United  States  as  conquered  territory,  had  jurisdiction  in  March, 
1899,  to  try  offenses.16  As  to  the  collection  of  duties  on  mer- 
chandise, a  treaty  takes  effect  from  the  exchange  of  ratifica- 
tions.17 

§  92.  Retroactive  effect. — Where  rights  of  succession  to  realty 
are  given  to  the  subjects  of  a  foreign  sovereign  by  a  treaty,  it  is 
not  retroactive  so  as  to  affect  the  succession  of  a  person  dying 
before  the  treaty.18  But  conventions  of  extradition,  where  no  ex- 
press limitation  is  expressed,  apply  to  offenses  committed  prior  to 
the  conclusion  of  such  conventions.19 

The  constitutional  provision  against  ex  post  facto  laws  is  not 
applicable.20  It  may  be  stated  as  a  rule  that  as  to  individual 
rights,  the  ratification  of  a  treaty  must  be  deemed  its  date.21 

§  93.  Authority  of  courts. — Whether  a  treaty  was  properly  ex- 
ecuted or  whether  it  was  obtained  by  undue  influence  are  not 
matters  into  which  courts  can  inquire.22  Courts  have  no  author- 
ity to  examine  or  decide  whether  the  person  ratifying  a  treaty 
on  behalf  of  a  foreign  nation  had  the  authority  to  enter  into  the 
stipulations  contained  in  the  treaty.  The  President  and  Senate 
make  this  inquiry  when  entering  into  the  treaty.23  Thus  it  was 
admitted  that  certain  grants  of  land  were  annulled  and  declared 
void  by  the  ratification,  by  the  King  of  Spain,  of  the  treaty  by 
which  Florida  was  ceded  to  the  United  States.  But  whether,  ac- 
cording to  the  constitution  of  Spain,  the  king  had  power  to  an- 
nul these  grants  is  a  political,  and  not  a  judicial,  question,  and  it 
was  decided  when  the  treaty  was  made  and  ratified.24 

The  court  will  refuse  to  pass  upon  the  power  of  Indian  tribes 
to  enter  into  a  treaty.25  Where  a  treaty  with  an  Indian  tribe 

16  Ex  parte  Ortz,  100  Fed.  955.  21  Yeaker's  Heirs  v.  Yeaker,  4  Met. 

17  Doolej    v.     United     States,    182       (61  Ky.),  33,  81  Am.  Dec.  530. 

U.  S.  222,  21  Sup.  Ct.  Eep.  762,  45  L.  a  Leighton    v.    United    States,    29 

ed.  1074.  Ct.   of  Cl.  288. 

18  Prevost  v.  Greenaux,  19  How.  1,  *  Doe  ex  dem.  Clark  v.  Braden,  16 
15  L.  ed.  572.  How.  (57  U.  S.)  635,  14  L.  ed.  1090. 

18  1  Moore  on  Extradition,  99.  2*  Doe  ex  dem.  Clark  v.  Braden,  16 

20  In  re  De  Giacomo,  12  Blatchf.  How.  (57  U.  S.)  635,  14  L.  ed.  1090. 
391,  Fed.  Cas.  No.  3747.  ^  in  re  Eace  Horse,  70  Fed.  607. 


§    94]  TAKING  EFFECT   AND    TERMINATION   OF    TREATIES.  94 

prescribes  a   rule  by  which  private   rights  can  be   determined, 
courts  will  give  effect  to  such  rule.26 

§  94.  Construction  of  treaty  province  of  courts. — But  it  is 
the  peculiar  province  of  the  courts  to  construe  a  treaty,  and  ex- 
cept in  purely  political  cases,  Congress  possesses  no  constitutional 
power  to  settle  rights  arising  from  a  treaty  or  to  affect  titles  al- 
ready granted  by  the  treaty  itself.27 

After  the  passage  of  a  resolution  by  the  Senate  that  it  has 
approved  a  treaty  with  Indians  and  the  issuance  by  the  Presi- 
dent of  a  proclamation  accepting,  ratifying  and  confirming  the 
treaty,  the  courts  cannot  go  into  the  question  as  to  whether  the 
treaty  was  in  fact  approved  by  the  Indians.28 

If  the  United  States,  as  a  sovereign  power,  chooses  to  disre- 
gard the  provisions  of  a  treaty,  the  supreme  court  of  the  United 
States  has  no  power  to  set  itself  up  as  an  instrumentality  for 
enforcing  its  provisions.29  Where  it  was  contended  that  an  act 
of  Congress  was  in  conflict  with  the  treaty  with  Mexico,  Mr. 
Justice  Miller  said  that  this  was  "a  matter  in  which  the  court 
is  bound  to  follow  the  statutory  enactments  of  its  own  govern- 
ment. If  the  treaty  was  violated  by  this  general  statute  enacted 
for  the  purpose  of  ascertaining  the  validity  of  claims  derived 
from  the  Mexican  government,  it  was  a  matter  of  international 
concern,  which  the  two  states  must  determine  by  treaty,  or  by 
such  other  means  as  enables  one  state  to  enforce  upon  another 
the  obligations  of  a  treaty.  This  court,  in  a  class  of  cases  like 
the  present,  has  no  power  to  set  itself  up  as  the  instrumentality 
for  enforcing  the  provisions  of  a  treaty  with  a  foreign  nation 
which  the  government  of  the  United  States,  as  a  sovereign  power, 
chooses  to  disregard."30 

26  Leighton  v.  United  States,  29  Ct.  238,  9  Sup.  Ct.  Eep.  525,  32  L.  ed. 

of  Cl.  288.  928. 

a  Jones  v.  Meehan,  175  U.  S.  1,  32,  30  Botiller  v.  Dominguez,  130  U.  S. 

20  Sup.  Ct.  Eep.  1,  44  L.  ed.  49;  238,  9  Sup.  Ct.  Rep.  525,  32  L.  ed. 

Wilson  v.  Wall,  6  Wall.  83,  18  L.  ed.  928.  See,  also,  The  Cherokee  To- 

727;  Eeiehart  v.  Felps,  6  Wall.  160,  bacco,  78  U.  S.  (11  Wall.)  616,  20  L. 

18  L.  ed.  849;  Smith  v.  Stevens,  10  ed/227;  Taylor  v.  Morton,  2  Curt. 

Wall.  321,  19  L.  ed.  933;  Holden  v.  454,  Fed.  Cas.  No.  13,799;  Head 

Joy,  17  Wall.  211,  21  L.  ed.  523.  Money  Cases,  112  U.  JS.  580,  5  Sup. 

28  New    York    Indians    v.    United  Ct.  Eep.    247,   28   L.   ed.    798;    Whit- 
States,  30  Ct.  of  Cl.  413.  'uey  v.   Eobertson,   124  U.   S.   190,   8 

29  Botiller  v.  Dominguez,  130  U.  S.  Sup.  Ct.  Eep.  456,  31  L.  ed.  386. 


95  TERMINATION  OP  TREATIES.  [§§    95,    96 

§  95.  Termination  of  treaties. — A  treaty  may  be  modified  or 
abrogated  by  mutual  consent;  when  terms  upon  which  its  con- 
tinuance is  based  cease  to  exist;  by  refusal  of  either  party  to 
perform  a  material  stipulation;  by  election  to  withdraw  by  a 
party  having  the  option  to  elect ;  by  the  physical  or  moral  impos- 
sibility of  performance;  by  the  discontinuance  of  a  state  of 
things  forming  the  basis  of  the  treaty  or  one  of  its  implied  con- 
ditions.31 

§  96.  Question  a  political  one.— After  Prussia  became  incor- 
porated into  the  German  Empire  the  treaty  entered  into  between 
the  United  States  and  Prussia  had  been  repeatedly  recognized 
by  both  governments  as  still  in  force.  Upon  habeas  corpus  pro- 
ceedings to  prevent  the  extradition  of  a  fugitive  from  justice 
who  is  held  under  extradition  proceedings  under  that  treaty,  the 
existence  of  the  treaty  cannot  be  questioned.  The  question  is  a 
political  one,  and  not  within  the  power  of  the  judicial  depart- 
ment to  determine,  and  whatever  determination  may  be  made  by 
the  political  department  must  be  accepted  by  the  courts.32  Nor 
is  it  necessary  to  consider  whether  extinguished  treaties  can 
be  renewed  by  tacit  consent,  because  in  determining  whether  a 
treaty  has  ever  been  terminated  the  action  taken  by  the  govern- 
ment in  respect  to  it  must  be  regarded  of  controlling  importance.33 

In  a  case  in  which  the  continuance  of  the  extradition  treaty 
with  Bavaria  was  questioned,  Mr.  Justice  Blatchford  said:  "It 
is  difficult  to  see  how  such  a  treaty  as  that  between  Bavaria 
and  the  United  States  can  be  abrogated  by  the  action  of  Bavaria 
alone  without  the  consent  of  the  United  States.  Where  a  treaty 
is  violated  by  one  of  the  contracting  parties,  it  rests  alone  with 
the  injured  party  to  pronounce  it  broken,  the  treaty  being  in 
such  case  not  absolutely  void,  but  voidable,  at  the  election  of  the 

81  Wharton  Int.  L.  D.  11,  58;  Whar-  charged  with  being  a  fugitive  from 

ton  Com.  Am.  Law,  sec.  161.  its  justice  should  be  permitted  to  call 

b2  Terlinden  v.  Ames,  184  U.  S.  on  the  courts  of  this  country  to  ad- 

270,  22  Sup.  Ct.  Eep.  484,  46  L.  ed.  judicate  the  correctness  of  the  con- 

534.  elusions  of  the  empire  as  to  its 

33  Terlinden  v.  Ames,  184  U.  S.  powers  and  the  powers  of  its  mem- 
270,  22  Sup.  Ct.  Eep.  484,  46  L.  ed.  bers,  and  especially  as  the  executive 
534.  Mr.  Chief  Justice  Fuller  said:  department  of  our  government  has 
"It  is  out  of  the  question  that  a  accepted  these  conclusions  and  pro- 
citizen  of  one  of  the  German  states  ceeded  accordingly. " 


§    97]  TAKING  EFFECT   AND    TERMINATION   OF   TREATIES.  96 

injured  party,  who  may  waive  or  remit  the  infraction  committed, 
or  may  demand  a  just  satisfaction,  the  treaty  remaining  obliga- 
tory if  he  chooses  not  to  come  to  a  rupture."34 

§  97.  Violation  of  treaty  by  one  nation. — If  one  of  the  con- 
tracting powers  continues  to  violate  a  provision  of  a  treaty,  the 
other  is  justified  in  regarding  the  provision  as  suspended  tem- 
porarily.35 Mr.  Madison  said  that,  as  he  understood  the  Con- 
stitution, treaties  are  supreme  over  the  laws  and  constitutions  of  the 
particular  states,  and  like  a  subsequent  law  of  the  United  States 
over  pre-existing  laws  of  the  United  States,  if  the  treaty  be 
made  within  the  prerogative  of  making  treaties,  which  he 
said  he  had  no  doubt  had  certain  limits,  but,  he  added, 
"that  the  contracting  powers  can  annul  the  treaty,  cannot, 
I  presume,  be  questioned,  the  same  authority,  precisely,  being 
exercised  in  annulling  as  in  making  a  treaty.  That  a  breach 
on  one  side  (even  of  a  single  article,  each  being  considered 
as  a  condition  of  every  other  article)  discharges  the  other, 
is  as  little  questionable ;  but  with  this  reservation,  that  the  other 
side  is  at  liberty  to  take  advantage  or  not  of  the  breach,  as  dis- 
solving the  treaty.  Hence  I  infer  that  the  treaty  with  Great 
Britain,  which  has  not  been  annulled  by  mutual  consent,  must  be 
regarded  as  in  full  force  and  effect  by  all  on  whom  its  execution 
in  the  United  States  depends,  until  it  shall  be  declared,  by  the 
party  to  whom  a  right  has  accrued  by  the  breach  of  the  other 
party  to  declare,  that  advantage  is  taken  of  the  breach,  and 
the  treaty  is  annulled  accordingly.  In  case  it  should  be  advisable 
to  take  advantage  of  the  adverse  breach,  a  question  may  perhaps 
be  started,  whether  the  power  vested  by  the  Constitution  with 
respect  to  treaties  in  the  President  and  Senate  makes  them  the 
competent  judges,  or  whether,  as  the  treaty  is  a  law  the  whole 
legislature  are  to  judge  of  its  annulment,  or  whether,  in  case 
the  President  and  Senate  be  competent  in  ordinary  treaties,  the 
legislative  authority  be  requisite  to  annul  a  treaty  of  peace,  as 
being  equivalent  to  a  declaration  of  war,  to  which  that  authority 
alone,  by  our  Constitution,  is  competent. ' '  36 

34  In  re  Thomas,  12  Blatchf.  370,  85  Mr.  Bayard,  Secretary  of  State, 

Fed.  Gas.  No.  13,887.     See,  also,  Doe  to    Mr.    Fairchild,    Secretary    of    the 

v.  Braden,  16  How.    (U.  S.)   635,  14  Treasury,  February  6,  1888,  For.  Rel. 

L.  ed.  1090;  Foster  v.  Neilson,  2  Pet.  1888,   I,   124. 

253,  7  L.  ed.  415.  M  1  Madison's  Works,  523,  524. 


97  TERMINATION   OF   TREATIES  BY   NOTICE.  [§§    98,    99 

§  98.  Termination  of  treaties  by  notice.— A  provision  is  some- 
times inserted  in  a  treaty  that  it  may  be  terminated  by  notice 
given  by  one  of  the  parties  to  the  other.  In  1798  a  statute 
was  passed  by  Congress  reciting  that  the  treaty  between  the 
United  States  and  France  had  been  repeatedly  violated  on  the 
part  of  the  French  government,  and  declaring  the  United  States 
were  exonerated  in  consequence  from  the  stipulation  of  the 
treaty.37  After  the  passage  of  this  act  a  French  vessel  captured 
as  lawful  prize,  on  board  of  an  American  ship,  a  cargo  of  goods 
owned  by  a  subject  of  Great  Britain,  but  insured  by  citizens  of 
the  United  States.  The  United  States  received  an  indemnity 
from  France  for  claims  of  spoliation,  and  an  assignee  of  the 
captured  cargo  attempted  to  recover  the  value  of  the  goods  from 
the  United  States  out  of  this  indemnity.  It  was  held  that  after 
the  treaties  between  France  and  the  United  States  had  become 
abrogated,  .the  goods  belonging  to  an  enemy  of  France  found  on 
an  American  vessel  were  not  entitled  to  protection,  and  that  as 
no  right  existed  in  the  United  States  to  demand  indemnity  from 
France  by  reason  of  such  seizure,  the  claimant  could  not  obtain 
satisfaction  out  of  the  general  indemnity  funds  which  France 
paid  to  the  United  States.38 

§  99.  Subject  matter  covered  by  later  treaty. — Where  a  later 
treaty  covers  the  whole  subject  matter  of  a  former  treaty,  it  will 
repeal  by  implication  the  former  treaty.39  Where  a  revocation 
of  a  treaty  is  made  upon  the  assumption  and  declaration  that  all 
its  provisions  were  incorporated  into  the  later  treaty,  the  revoca- 
tion must  be  confined  to  those  provisions  which  were  so  incor- 
porated, and  the  treaty  will  continue  to  be  in  force  as  to  the  pro- 
visions not  incorporated.40 

37  1  Stats.  578.  5   App.   Div.  621,  as  to   later  treaty 

38  The  William,  23  Ct.  of  Cl.  201.       abrogating   treaty  with  Wiirtemberg. 
3a  La      Kepublique      Francaise      v.  40  Ross  v.  Mclntyre,  140  U.  8.  453, 

Schultz,  57  Fed.  37.     See,  also,  In  re       11  Sup.  Ct.  Eep.  897,  35  L.  ed.  581. 
FtrobePs  Estate,  39  N.  Y.  Supp.  169, 
Treaties — 7 


100]  FEDERAL    QUESTION    UNDER    TREATY.  98 


CHAPTER  VI. 

FEDERAL  QUESTION  UNDER  TREATY. 

§  100.  Federal  question. 

§  101.  Fraudulent  claim. 

§  102.  Both  parties  claiming  under  grant. 

§  103.  Treaty  right  must  be  set  up. 

§  104.  When  to  be  set  up. 

§  105.  Claim  under  treaty  not  a  frivolous  question. 

§  106.  Title  in  third  person  under  treaty. 

§  107.  Outstanding  title  in  assignee  in  bankruptcy. 

§  108.  Construction  of  state  statutes. 

§  109.  Protection  of  inhabitants. 

§  110.  Award  under  claims  commission. 

§  111.  Diverse  citizenship  sole  ground  of  jurisdiction  at  commencement   of 

suit. 

§  112.  Treaty  introduced  as  part  of  history  of  case. 

§  113.  Definite  issue  as  to  claim  of   right. 

§  114.  Manner  in  which  cause  of  action  arises  to  be  stated. 

§  100.  Federal  question. — Under  the  Constitution,  the  judicial 
power  of  the  United  States  extends  to  all  cases  in  law  or  equity  aris- 
ing under  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority.1 The  supreme  court  of  the  United  States  has  appellate 
jurisdiction  over  a  judgment  or  decree  in  any  suit  in  the  highest 
court  of  a  state  in  which  the  validity  of  a  treaty  is  drawn  in 
question,  and  if  the  decision  is  against  its  validity,  or  the  title 
specially  asserted  by  either  party  to  the  suit,  under  the  treaty, 
the  court  is  not  confined  to  the  abstract  construction  of  the  treaty, 
but  has  jurisdiction  to  determine  that  title  and  decide  as  to  its 
legal  validity.2  No  federal  question,  however,  is  presented  where 
the  highest  court  of  a  state  adjudicated  that  certain  proceedings 

1  Const.,  art.  Ill,  sec.  2,  cl.   2.  the   title,   before   the   court  can   con- 

2  Martin    v.     Hunter's     Lessee,     1  strue  the  treaty  in  reference  to  that 
Wheat.  304,  4  L.  ed.  97.     "How,  in-  title.     If  the  court  below  should  de- 
deed,   can  it  be  possible, ' '   said  Mr.  cide  that  the  title  was  bad,  and,  there- 
Justice  Story  in  the  case  just  cited,  fore,    not    protected    by    the    treaty, 
"to  decree  whether  a  title  be  within  must  not  this  court  have  the  power  to 
the  protection  of  a  treaty  until  it  is  decide  the  title  to  be  good,  and,  there- 
ascertained    what    the    title    is    and  fore,  protected  by  the  treaty?     Is  not 
whether    it    have    a    legal    validity?  the  treaty,  in  both  instances,  equally 
From  the  very  necessity  of  the  case,  construed,  and  the  title  of  the  party, 
there  must  be  a  preliminary  inquiry  in  reference  to  the  treaty,  equally  as- 
into    the    existence    and    structure    of  certained  and  decided?" 


99  FRAUDULENT    CLAIM.  [§§    101,    102 

before  a  Mexican  tribunal,  prior  to  the  treaty  of  Guadalupe 
Hidalgo,  were  not  sufficient  to  affect  the  partition  of  a  tract  of 
land  previously  granted  by  the  Mexican  government,  and  where 
the  grant  was  confirmed  under  the  act  of  Congress.  That  treaty 
protected  all  existing  rights  within  the  ceded  territory,  ''but  it 
neither  created  the  rights  nor  defined  them.  Their  existence  was 
not  made  to  depend  on  the  Constitution,  laws,  or  treaties  of  the 
United  States.  There  was  nothing  done  but  to  provide  that  if 
they  did  in  fact  exist  under  the  Mexican  law,  or  by  reason  of 
the  action  of  Mexican  authorities,  they  should  be  protected. 
Neither  was  any  provision  made  as  to  the  way  of  determining 
their  existence.  All  that  was  left  by  implication  to  the  ordinary 
judicial  tribunals.  Any  court,  whether  state  or  national,  having 
jurisdiction  of  the  parties,  and  of  the  subject  matter  of  the  ac- 
tion, was  free  to  act  in  the  premises."3 

§  101.  Fraudulent  claim. — No  protection  was  extended  by  the 
treaty  to  a  fraudulent  claim,  and  proceedings  under  the  statute 
to  determine  any  such  question  between  private  persons,  none  of 
whom  claimed  under  the  United  States  by  title  subsequent,  but 
who  founded  their  claims  upon  patents  based  upon  Mexican 
grants.  Like  the  ordinary  case  of  a  contest  in  respect  to  a  forged 
or  fraudulent  deed,  the  state  courts  were  open  for  the  adjudica- 
tion between  individuals  of  the  priority  or  validity  of  conflicting 
titles  under  different  grants  from  the  same  antecedent  source, 
and  whether  one  of  the  two  grants  was  forged  or  obtained  by 
fraud  did  not  raise  an  issue  involving  the  denial  of  a  right  or 
title  set  up  under  the  treaty  or  the  statute.4 

§  102.  Both  parties  claiming  under  grant. — A  suit  does  not 
arise  under  that  treaty  so  as  to  confer  jurisdiction  on  a  federal 
court,  when  both  parties  claim  under  Mexican  grants,  confirmed 
and  patented  to  the  United  States,  conformably  to  the  provisions 
of  the  treaty  protecting  all  existing  property  rights.5 

3  Phillips  v.   Morina   City  Land  &  4  Lynch  v.  De  Bernal,  76  TJ.  S.   (9 

W.  Assn.,  124  U.  S.  605,  610,  8  Sup.  Wall.)    315,  19  L.  ed.  714. 

Ct.  Eep.  657,  31  L.  ed.  588,  per  Mr.  5  Crystal    Springs    Land    &    Water 

Chief    Justice    Waite.     In    Martin    v.  Co.  v.   City  of  Los  Angeles,  76  Fed. 

Hunter's  Lessee,  1  Wheat.  304,  4  L.  148;  Crystal  Springs  Land  &  W.  Co. 

ed.  97,  the  plaintiff  claimed  under  a  v.  Los  Angeles,  82  Fed.   117. 
treaty,  and  the  court  decided  against 
the  title  thus  asserted. 


§    103]  FEDERAL    QUESTION    UNDER    TREATY.  100 

§  103.  Treaty  right  must  be  set  up. — To  enable  the  supreme 
court  of  the  United  States  to  entertain  jurisdiction  to  review  a 
judgment  of  a  state  court,  denying  a  title,  right,  privilege  or 
immunity  claimed  under  a  treaty,  it  must  appear  on  the  record 
that  such  title,  right,  privilege  or  immunity  was  specially  set 
up  or  claimed  at  the  proper  time,  and  in  the  proper  manner,  and 
that  the  decision  was  against  the  right  so  asserted.  If  the  de- 
cision of  the  state  court  rests  on  an  independent  ground,  not 
involving  a  federal  question  and  broad  enough  to  maintain  the 
judgment,  the  supreme  court  of  the  United  States  will  dismiss 
a  writ  of  error  without  considering  any  federal  question  that  may 
have  been  presented  also.6  Thus,  the  fact  that  the  judgment  of 
the  state  court  was  based  upon  the  proposition  that  the  grant 
under  which  the  plaintiff  in  error  claimed  title  was  simulated,  is 
a  sufficient  reason  for  sustaining  the  judgment,  and  it  cannot  be 
said  that  a  federal  question  is  involved.7  To  quote  the  lan- 
guage of  Mr.  Justice  Bradley:  "The  rules  which  govern  the  action 
of  this  court  in  cases  of  this  sort  are  well  settled.  Where  it 
appears  by  the  record  that  the  judgment  of  the  state  court  might 
have  been  based  either  upon  a  law  which  would  raise  a  question 
of  repugnancy  to  the  Constitution,  laws,  or  treaties  of  the  United 
States,  or  upon  some  other  independent  ground,  and  it  appears 
that  the  court  did,  in  fact,  base  its  judgment  on  such  independent 
ground  and  not  on  the  law  raising  the  Federal  question,  this  court 
will  not  take  jurisdiction  of  the  case,  even  though  it  might  think 
the  position  of  the  state  court  an  unsound  one.  But  where  it 
does  not  appear  on  which  of  the  two  grounds  the  judgment  was 
based,  then,  if  the  independent  ground  on  which  it  might  have 
been  based  was  a  good  and  valid  one,  sufficient  of  itself  to  sustain 
the  judgment,  this  court  will  not  assume  jurisdiction  of  the  case ; 
but  if  such  independent  ground  was  not  a  good  and  valid  one,  it 
will  be  presumed  that  the  state  court  based  its  judgment  on  the 
law  raising  the  Federal  question,  and  this  court  will  then  take 
jurisdiction."  8  Or,  as  it  has  been  expressed  in  other  words,  that 
where  an  action  is  pending  in  a  state  court,  and  "two  grounds 

6  California      Powder      Works      v.  >     7  California      Powder      Works      v. 

Davis,    151    U.    S.    393,    14    Sup.    Ct.  Davis,    151    U.    S.    395,    14    Sup.    Ct. 

Eep.  352,   38  L.   ed.  206;    Eustis  v.  Eep.  352,   38  L.  ed.   206. 

Bolle,  150  U.  S.  361,  14  Sup.  Ct.  Eep.  8  In  Klinger  v.  Missouri,  13  Wall. 

131,  37  L.  ed.  1111.  (80  U.  S.)    257,  20  L.  ed.  635. 


101  WHEN   TO   BE   SET  UP.  [§    104 

of  defense  are  interposed,  each  broad  enough  to  defeat  a  recov- 
ery, and  only  one  of  them  involves  a  Federal  question,  and  judg- 
ment passes  for  the  defendant,  the  record  must  show,  in  order 
to  justify  a  writ  of  error  from  this  court,  that  the  judgment  was 
rested  upon  the  disposition  of  the  Federal  question;  and  if  this 
does  not  affirmatively  appear,  the  writ  of  error  will  be  dismissed, 
unless  the  defense  which  does  not  involve  a  Federal  question  is 
so  palpably  unfounded  that  it  cannot  be  presumed  to  have  been 
entertained  by  the  state  court."9 

§  104.  When  to  be  set  up.— The  right  claimed  as  arising  from 
a  treaty  must  be  claimed  or  set  up  prior  to  the  petition  for  a 
writ  of  error,  as  this  forms  no  part  of  the  record  of  the  lower 
court;10  and  the  state  court  must  have  actually  decided  the  fed- 
eral question,  or  the  judgment  must  necessarily  involve  a  decision 
of  it  ;n  for  the  federal  question  will  not  be  considered  if  the  de- 
cision of  the  state  court  on  some  other  than  a  federal  ground 
is  sufficiently  comprehensive.12  The  supreme  court  is  without 
jurisdiction  unless  it  appear  in  the  record  that  a  federal  ques- 
tion was  raised  and  decided  in  the  state  court.13 

9  Johnson  v.  Risk,  137  U.  S.  300,  11       and  no  finding  upon  any  such  question. 
Sup.  Ct.  Rep.  Ill,  34  L.  ed.  683.  Thus  there  is  an  entire  absence  in  this 

10  Clark  v.  Commonwealth  of  Penn-  whole  record  of  any  fact  showing  that 
sylvania,   128   U.   S.   395,   9   Sup.   Ct.  the  supreme  court  of  Illinois   or  either 
Rep.  113,  32  L.  ed.  487.  of  the  lower  courts  decided  any  Fed- 

11  Fowler    v.    Lamson,    164    U.    S.  eral   question   whatever.     The   assign- 
255,  17  Sup.  Ct.  Rep.  113,  41  L.  ed.  ment  of  errors  alleged  to  have  been 
425.  made   by   the    Illinois   supreme    court 

12  Chappell  Chemical  Co.  v.  Sulphur  is    unavailable    for    the    purpose    of 
Mines  Co.,  172  U.  S.  471,  19  Sup.  Ct.  showing    any    Federal    question    de- 
Rep.   267,   43   L.   ecu   517;    Dower   v.  cided,    where    the    record    itself    does 
Richards,  151  U.  S.  666,  14  Sup.  Ct.  not  show  that  any  such  question  was 
Rep.  455,  38  L.  ed.  308;  Missouri  Pac.  passed  upon  by  the  state  court.  Mis- 
Ry.  v.  Fitzgerald,  160  U.  S.  576,  16  souri  P.  R.  Co.  v.  Fitzgerald,  160  U. 
Sup.  Ct.  Rep.  393,  40  L.  ed.  540.  S.  556-575,  16  Sup.  Ct.  Rep.  393,  40 

13  Fowler  v.  Lamson,  164  U.  S.  225,  L.    ed.    536-540.     Where    a    case    is 
17  Sup.  Ct.  Rep.  113,  41  L.  ed.  425.  brought  to  this  court  on  error  or  ap- 
Said  the  court:  "It  will  be  seen  that  peal    from    a    judgment    of    a    state 
there  are  no  pleadings  on  the  record;  court  unless  it  appear  in  the  record 
no    evidence    is    returned;    no    excep-  that  a  Federal  question  was  raised  in 
tions  to  any  decision  of  the  court  are  the    state   court   before   the   entry   of 
to  be  found;  no  request  to  the  court  final  judgment  in  the  case,  this  court 
to   find   upon   any   Federal   question;  is    without    jurisdiction.    Simmerman 


§    105]  FEDERAL    QUESTION    UNDER    TREATY.  102 

§  105.     Claim    under    treaty    not    a    frivolous    question. — A 

writ  of  error  will  not  be  dismissed  unless  the  federal  question 
presented  is  frivolous.  An  action  in  ejectment  was  brought 
by  the  city  of  Mobile  in  a  state  court  to  recover  a  portion  of 
the  shore  and  bed  of  the  Mobile  river  in  the  city  of  Mobile  be- 
tween high-water  mark  and  the  channel  line.  The  defendant 
offered  in  evidence  certain  documents,  legislative  and  execu- 
tive, of  the  Congress  of  the  United  States,  in  relation  to  the 
public  lands,  from  the  first  session  of  the  first  Congress  to 
the  first  session  of  the  twenty-third  Congress,  and  especially 
that  relating  to  the  claim  of  one  Bernoudy,  who  claimed  under 
a  Spanish  grant  made  in  1792,  together  with  evidence  of  the 
report  of  the  land  commissioner,  in  favor  of  his  claim  and  a 
patent  of  the  United  States  to  the  assignees  of  Bernoudy,  re- 
citing that  the  claim  of  Bernoudy  was  affirmed,  had  been  sur- 
veyed, and  was  by  such  title  granted  to  the  assignees.  Defend- 
ant also  offered  an  unbroken  series  of  deeds  from  these  assignees 
to  it  as  well  as  proof  of  adverse  possession  of  the  lands  under 
color  of  right.  The  lower  court  excluded  the  evidence,  and  its 
action  was  affirmed  by  the  supreme  court  of  the  state.14  The 
case  was  taken  to  the  supreme  court  of  the  United  States  by  a 
writ  of  error,  and  a  motion  was  made  in  that  court  to  dismiss 
the  writ  for  the  want  of  a  federal  question.  But  the  court  de- 
cided that  inasmuch  as  the  defendant's  title  depended  upon  a 
Spanish  grant  claimed  to  have  been  perfected  under  a  treaty, 
and  a  patent  of  the  United  States  in  alleged  confirmation  of  such 
claim,  the  motion  could  not  be  sustained,  unless  upon  the  theory 
that  the  federal  questions  presented  were  frivolous  and  unde- 

v.  Nebraska,  116  U.  S.  54,  6  Sup.  Ct.  dered  could  not  have  been  given  with- 
Eep.  333,  29  L.  ed.  535.  It  has  also  out  deciding  it.  Eustis  v.  Bolles,  150 
been  frequently  decided  that,  to  give  U.  S.  361,  14  Sup.  Ct.  Eep.  131,  37  L. 
this  court  jurisdiction  on  writ  of  error  ed.  1111 ;  California  Powder  Works 
to  a  state  court,  it  must  appear  af-  v.  Davis,  151  U.  S.  389-393,  14  Sup. 
firmatively,  not  only  that  a  Federal  Ct.  Eep.  352,  38  L.  ed.  206,  207;  Mis- 
question  was  presented  for  decision  by  souri  P.  E.  Co.  v.  Fitzgerald,  160  U. 
the  state  court,  but  that  its  decision  S.  556-576,  16  Sup.  Ct.  Eep.  393,  40 
was  necessary  to  the  determination  of  L.  ed.  536-540. ' ' 

the  cause,  and  that  it  was  decided  ad-          14  Mobile  Transp.  Co.  v.  City  of  Mo- 

versely  to  the  party  claiming  a  right  bile,  128  Ala.  335,  86  Am.   St.  Eep. 

under  the  Federal  laws   or   Constitu-  143,  30  South.  645,  64  L.  E.  A.  333. 
tion,    or   that    the    judgment   as   ren- 


103  TITLE   IN   THIRD   PERSON    UNDER   TREATY.       [§§    106,    107 

serving  of  further  notice,  and  the  court  was  of  the  opinion  that 
they  could  not  be  so  considered.15 

§  106.  Title  in  third  person  under  treaty. — The  supreme  court 
of  the  United  States  has  no  jurisdiction  in  actions  of  ejectment 
where  the  defence  is  an  outstanding  title  alleged  to  be  protected  by 
treaty.  At  an  early  day  the  court  declared  that  the  words,  "a 
case  arising  under  a  treaty,"  in  the  judiciary  act  must  be  restrained 
by  the  Constitution.  In  an  action  of  ejectment  between  two 
citizens  of  Maryland  the  defendant  set  up  an  outstanding  title 
in  a  British  subject,  which  he  claimed  was  protected  by  the  treaty, 
and  therefore  the  title  was  not  in  the  plaintiff.  The  highest  court 
of  Maryland  decided  against  this  claim,  but  it  was  held  that  it 
was  not  a  case  in  which  a  writ  of  error  would  lie  to  the  supreme 
court  of  the  United  States.16  The  principle  announced  in  the 
case  cited  in  the  note  has  been  followed  in  a  number  of  others.17 
While  the  court  has  jurisdiction  to  determine  conflicting  rights 
under  an  Indian  treaty,  it  cannot  go  behind  the  treaty  to  decide 
matters  settled  by  the  treaty.18 

§  107.  Outstanding  title  in  assignee  in  bankruptcy. — So,  on 
similar  grounds,  jurisdiction  will  not  be  entertained  when  an 
outstanding  title  in  a  federal  assignee  in  bankruptcy  who  is  not 
a  party  to  the  suit  is  set  up  as  a  defense  against  the  officers  of  a 
state  court. 19  It  was  said  by  Mr.  Chief  Justice  Taney  in  a  case 
in  which  the  defendant  set  up  an  outstanding  title  in  a  third  per- 
son under  an  Indian  treaty:  "It  is  true,  the  title  set  up  in  this 
case  was  claimed  under  a  treaty;  but,  to  give  jurisdiction  to  this 
court,  the  party  must  claim  the  right  for  himself,  and  not  for  a 
third  person  in  whose  title  he  has  no  interest. ' ' 20 

15  Mobile  Transportation  Co.  v.  Mo-  19  Long  v.  Converse,  91  U.  S.   113, 
bile,  187  U.  S.  479,  23  Sup.  Ct.  Kep.  23  L.  ed.   233.     And  see  other  cases 
170,  47  L.  ed.  266.  by  analogy,   Connor  v.  Scott,  4  Dill. 

16  Owings   v.    Norwood's   Lessee,    5  246,    Fed.    Gas.    No.    3119;    Giles    v. 
Cranch,  344,  3  L.  ed.  120.  Little,  134  U.  S.  650,  10  Sup.  Ct.  Kep. 

17  Fisher  v.  Cockerell,  5  Pet.  257,  8  623,  33  L.  ed.   1064;    Miller  v.  Lan- 
L.   ed.   117;    Henderson  v.   Tennessee,  caster  Bank,  106  U.  S.  544,  1  Sup.  Ct. 
10  How.  323,  13  L.  ed.  439;  Verden  v.  Eep.   537,   27  L.   ed.   290;    Wynne  v. 
Coleman,  1  Black,  474,  17  L.  ed.  162.  Morris,  20  How.  5,  15  L.  ed.  801. 

18  United  States  v.  Old  Settlers,  148  20  Henderson  v.  State  of  Tennessee, 
U.  S.  469,   13  Sup.  Ct.  Eep.  667,  37  10  How.   (U.  S.)   311,  13  L.  ed.  434. 
L.  ed.  525. 


§  108] 


FEDERAL    QUESTION    UNDER    TREATY. 


104 


§  108.  Construction  of  state  statutes. — Where  the  issue  affect- 
ing the  title  to  land  is  whether  a  state  statute  of  confiscation 
accomplished  a  complete  confiscation  within  the  meaning  of  a 
treaty,  the  construction  of  the  treaty  is  sufficiently  involved  for 
the  purposes  of  federal  jurisdiction.21 

Under  the  treaty  between  the  United  States  and  Mexico  pro- 
viding for  the  adjustment  of  claims  of  American  citizens  against 
Mexico,  a  sum  of  money  was  awarded  to  be  paid  to  the  members 
of  a  company  who  had  subscribed  money,  to  fit  out  an  expedition 
against  Mexico.  Two  parties  claimed  the  proceeds  of  one  of  the 
shares  of  the  company,  one  as  being  the  second  permanent  trustee 
of  the  insolvent  owner  of  the  share,  and  the  other  as  being  the 
assignee  of  the  first  permanent  trustee.  It  was  decided  by  the 
court  of  appeals  of  Maryland  that  the  second  permanent  trustee 
did  not  take  the  claim  under  the  insolvent  laws  of  that  state, 
and  this  decision  was  held  by  the  supreme  court  of  the  United 
States  not  to  be  reviewable.22 


21  Smith   v.    State   of   Maryland,    6 
Cranch,  286,  3  L.  ed.  225. 

22  Williams,    Trustee,  v.   Oliver,    12 
How.  124,  13  L.  ed.  921;  Gill  v.  Oli- 
ver's Executors,  11  How.  529,  13  L. 
ed.  808.     The  court  said,  per  Mr.  Jus- 
tice   Nelson:    "The    decision    of    the 
court  below,  therefore,  not  involving 
the  validity  of  the  treaty,  or  award  of 
the    commissioners,    or   lawfulness    or 
character  of  the  fund,  but  simply  the 
right  and  title  to  the  respective  shares 
claimed  on  it  after  the  fund  had  been 
paid    over    by    the    government,    and 
brought  into  court  for  distribution  ac- 
cording to  the  agreement  of  all  con- 
cerned,   and    which    distribution    de- 
pended upon  the  laws  of  the  state,  a 
majority    of    the    court,    taking    this 
view  of  the  case,  held,  that  there  was 
a  want  of  jurisdiction,  and  dismissed 
the  writ   of  error,   and   that  the   de- 
cision, whether  right  or  wrong,  could 
not  be  the  subject  of  review  under  the 
25th  section  of  the  judiciary  act,  as 
it  involved  no  question,  either  directly 
or  by   necessary   intendment,   arising 


upon  the  treaty  or  award,  or  con- 
nected with  the  validity  of  either,  and 
if  this  court  were  right  in  the  view 
thus  taken  of  the  case,  there  can  be 
no  doubt  of  the  correctness  of  the 
conclusion  arrived  at. ' '  The  court 
referred  to  some  cases  sustaining  this 
principle  but  said :  "  It  is  not  in- 
tended, nor  to  be  understood  from 
these  cases,  that  the  question,  thus 
material  to  the  decision  arrived  at, 
-nust  be  confined  exclusively  and  spe- 
cially to  the  conclusion  of  the  treaty, 
act  of  Congress,  etc.,  in  order  to  give 
the  jurisdiction,  as  this  would  be  too 
narrow  a  view  of  it.  Points  may  arise 
growing  out  of  and  connected  with 
the  general  question,  and  so  blended 
with  it  as  not  to  be  separated,  and 
therefore  falling  equally  within  the  de- 
cision contemplated  by  the  25th  sec- 
tion. The  cases  of  Smith  v.  The 
State  of  Maryland,  6  Cranch,  286,  3 
L.  ed.  225,  and  Martin  v.  Hunter's 
Lessee,  1  Wheat.  304,  355,  4  L.  ed. 
97,  afford  illustrations  of  this  prin- 
ciple. " 


105  PROTECTION  OF  INHABITANTS.  [§§    109,    110 

§  109.  Protection  of  inhabitants. — A  federal  question  is  pre- 
sented by  a  claim  that  a  person  who  has  settled  within  the  terri- 
tory of  an  Indian  nation  is  on  account  of  treaties  made  between 
the  Indians  and  the  United  States  entitled  to  reside  there  free 
from  any  legislative  interference  by  the  states.23 

When  Louisiana  entered  the  Union  its  inhabitants  were  ad- 
mitted to  the  enjoyment  of  all  the  rights,  advantages  and  im- 
munities of  the  citizens  of  the  United  States.  Hence  the  supreme 
court  of  the  United  States  will  not  review  a  decision  of  the  su- 
preme court  of  Louisiana,  on  the  ground  that  it  was  adverse  to 
a  right  secured  by  a  stipulation  in  the  treaty  of  cession  of  Louis- 
iana for  the  protection  of  the  inhabitants,  in  the  free  enjoyment 
of  their  liberty,  property  or  religion,  because  the  operation  of 
this  stipulation  ceased  on  Louisiana's  admission  to  the  Union.24 
A  federal  question  is  raised  by  the  question  whether  proceedings 
in  extradition  were  violative  of  and  forbidden  by  the  treaty 
from  which  extradition  was  secured.25 

§  110.  Award  under  claims  commission. — A  convention  was 
concluded  between  the  United  States  and  France  in  January, 
1880,26  by  which  it  was  stipulated  that  "all  claims  on  the  part 
of  corporations,  companies,  or  private  individuals,  citizens  of  the 
United  States,  upon  the  government  of  France,  arising  out  of  acts 
committed  against  the  persons  or  property  of  citizens  of  the  United 
States,  not  in  the  service  of  the  enemies  of  France  or  voluntarily 
giving  aid  and  comfort  to  the  same,  by  the  French  civil  or  mili- 
tary authorities,  upon  the  high  seas  or  within  the  territory  of 
France,  its  colonies  and  dependencies,  during  the  late  war  be- 
tween France  and  Mexico,  or  during  the  war  between  France  and 
Germany,  and  the  subsequent  civil  disturbances  known  as  the 
'Insurrection  of  the  Commune,'  and,  on  the  other  hand,  all  claims 
on  the  part  of  corporations,  companies  or  private  individuals, 
citizens  of  France,  arising  out  of  acts  committed  against  the 
persons  or  property  of  citizens  of  France  not  in  the  service  of 
the  enemies  of  the  United  States,  or  voluntarily  giving  aid  and 
comfort  to  the  same,  by  the  civil  or  military  authorities  of  the 

23  Worcester  v.  Georgia,  6  Pet.  515,  25  Ker  v.  Illinois,  119  U.  S.  436,  7 
8  L.  ed.  483.  Sup.  Ct.  Eep.  225,  30  L.  ed.  421. 

24  New  Orleans  v.  De  Armas,  9  Pet.  26  12  Stats.  673. 
224,  9  L.  ed.  109. 


§    111]  FEDERAL    QUESTION    UNDER    TREATY.  106 

government  of  the  United  States,  upon  the  high  seas  or  within 
the  territorial  jurisdiction  of  the  United  States  during  the  period 
comprised  between  the  thirteenth  day  of  April,  1861,  and  the 
twentieth  day  of  August,  1866,"  shall  be  referred  to  three  com- 
missioners, one  of  whom  shall  be  named  by  the  President  of  the 
United  States,  and  one  by  the  French  government,  and  the  third 
by  His  Majesty,  the  Emperor  of  Brazil.  These  commissioners 
were  obliged  to  examine  and  decide  upon  all  claims  of  this 
character  presented  to  them.  They  allowed  a  claim  to  an  ex- 
ecutor, for  injuries  done  to  his  testator's  property;  and  on  dis- 
tribution a  contest  arose  among  the  heirs,  the  plaintiffs  in  error, 
claiming  that  they  were  entitled  to  the  whole  award,  because 
they  were  the  only  heirs  and  legatees  who  were  French  citizens 
at  the  time  the  claim  was  presented  and  when  the  award  was 
rendered;  and  that  no  award  under  the  treaty  could  have 
been  made  in  favor  of  the  other  heirs  and  legatees,  as  they  were 
citizens  of  the  United  States  at  that  time ;  and  that  no  executor 
or  person  representing  the  succession  of  a  person  who  was  not 
a  French  citizen  at  the  time  the  damage  was  suffered  and  award 
rendered  could  have  any  standing  before  the  commission. 

The  lower  state  court  sustained  the  position  of  plaintiffs  in 
error,  and  decreed  that  the  entire  fund  should  go  to  them,  one- 
half  to  each.  The  supreme  court  of  Louisiana  reversed  this  de- 
cree, and  gave  judgment  to  the  effect  that  the  entire  fund  in 
the  possession  of  the  executor  should  be  distributed  proportion- 
ally among  all  the  heirs  and  legatees,  both  French  and  American 
citizens.  As  the  decision  of  the  supreme  court  of  Louisiana  was 
thus  against  the  right  asserted  by  the  French  citizens  as  heirs, 
founded  upon  this  treaty,  the  supreme  court  of  the  United  States 
held  that  a  question  was  presented  within  the  jurisdiction  of 
the  court.27 

§  111.  Diverse  citizenship  sole  ground  of  jurisdiction  at  com- 
mencement of  suit. — If,  when  a  suit  is  commenced  in  a  circuit 
court  of  the  United  States,  the  jurisdiction  is  placed,  at  the  com- 
mencement of  the  suit,  solely  upon  the  ground  of  diverse  citizen- 
ship, the  judgment  of  the  circuit  court  of  appeals  is  final,  al- 
though subsequently  other  questions  are  raised.  The  supreme 
court  of  the  United  States  will,  in  such  a  case,  dismiss  a  writ  of 

27  Burthe  v.  Denis,   133  U.  S.  514,    10  Sup.  Ct.  Rep.  335,  33  L.  ed.  768. 


107     TREATY  INTRODUCED  AS  PART  OF  HISTORY  OP  CASE.      [§§    112,    113 

error,  should  the  case  be  brought  to  that  court,  from  the  circuit 
court  of  appeals.28 

§  112.  Treaty  introduced  as  part  of  history  of  case. — A  writ 
of  error  cannot  be  maintained  where  a  treaty  and  award  are 
introduced  merely  as  a  part  of  the  history  of  the  case.  This 
does  not  involve  in  any  way  the  validity  of  the  treaty  or  its 
construction.  An  appeal  or  writ  of  error  is  allowed  to  the 
supreme  court  of  the  United  States  by  the  fifth  section  of  the 
act  of  March  3,  1891,  "in  any  case,  in  which  the  constitutionality 
of  any  law  of  the  United  States,  or  the  validity  or  construction  of 
any  treaty  made  under  its  authority,  is  drawn  in  question. ' '  But 
if  it  is  not  "suggested  in  the  summons  and  statement  of  claim 
that  the  validity  or  construction  of  any  treaty  made  under  the 
authority  of  the  United  States  was  drawn  in  question,  and  no 
such  question  was  decided  either  by  the  circuit  court  or  the 
circuit  court  of  appeals,"  and  no  question  is  raised  by  clear 
and  necessary  intendment  directly  touching  the  validity  or  con- 
struction of  a  treaty,  a  writ  of  error  does  not  lie.29 

§  113.  Definite  issue  as  to  claim  of  right. — The  supreme  court 
of  the  United  States  has  declared  that  to  authorize  it  to  revise 
a  judgment  of  the  court  below,  a  definite  issue  as  to  the  claim 
of  right  under  the  Constitution  must  be  clearly  deducible  from 
the  record.  "A  case  may  be  said  to  involve  the  construction  or 
application  of  the  Constitution  of  the  United  States  when  a  title, 
right,  privilege,  or  immunity  is  claimed  under  that  instrument, 
but  a  definite  issue  in  respect  of  the  possession  of  the  right 
must  be  distinctly  deducible  from  the  record  before  the  judgment 
of  the  court  below  can  be  revised  on  the  ground  of  error  in  the 
disposal  of  such  a  claim  by  its  decision.  And  it  is  only  when 

28  Borgmeyer    v.    Idler,    159    U.    S.  rectly  concerned,  the  court  held  that 
408,    16    Sup.    Ct.    Eep.    34,    40    L.  the  ground  of  the  judgment  did  not 
ed.    199;    Colorado    Central    Consoli-  involve    either    the    validity    or    con- 
dated  Min.   Co.  v.   Turck,   150  U.   S.  struction    of    the    treaty.-     See,    also, 
138,   14  Sup.  Ct.  Eep.  35,  37  L.  ed.  Gill  v.   Oliver,   52   U.   S.    (11   How.) 
1030.  529,  13  L.  ed.  799 ;  Williams  v.  Oliver, 

29  Borgmeyer   v.    Idler,    159    U.    S.  53  U.   S.    (12  How.)    Ill,   13  L.   ed. 
408,  16  Sup.  Ct.  Eep.  34,  40  L.  ed.  199.  915 ;   Baltimore  &  P.  E.  Co.  v.  Hop- 
In  that  case,  in  which   treaties  with  kins,  130  U.  S.  225,  9  Sup.  Ct.  Eep. 
the  Eepublic  of  Venezuela  were  indi-  503,  32  L.  ed.  913. 


114] 


FEDERAL    QUESTION    UNDER    TREATY. 


108 


the  constitutionality  of  a  law  of  the  United  States  is  drawn  in 
question,  not  incidentally,  but  necessarily  and  directly,  that  our 
jurisdiction  can  be  invoked  for  that  reason."30 

§  114.    Manner  in  which  cause  of  action  arises  to  be  stated.— 

If  it  is  claimed  that  a  cause  of  action  depends  upon  the  construc- 
tion of  a  treaty,  it  must  be  stated  in  what  way  it  arises.  If  a 
complaint  in  ejectment  states  a  reliance  on  a  certain  article  of 
a  treaty  and  the  fifth  amendment  of  the  Constitution,  without 
declaring  that  any  right,  title,  privilege  or  immunity  is  derived 
from  either  the  Constitution  or  treaty,  or  indicating  how  the 
cause  of  action  is  founded  upon  either,  and  the  court  does  not 
decide  any  question  as  to  the  application  or  construction  of  the 
Constitution  or  validity  or  construction  of  the  treaty,  but  holds 
that  the  title  of  plaintiff  failed  on  account  of  noncompliance  with 
Spanish  law,  a  writ  of  error  will  not  lie  from  the  supreme  court 
of  the  United  States.31 

The  right  which  it  is  claimed  depends  upon  the  treaty  must 
be  so  set  up  or  claimed  as  to  require  the  lower  court  to  pass 
on  the  question  of  validity  or  construction  in  disposing  of  the 
right  asserted.32 


30  Mr.  Chief  Justice  Fuller  in  Ans- 
bro  v.  United  States,  159  U.  S.  698, 
16  Sup.  Ct.  Kep.  189,  40  L.  ed.  311. 
See,  also,  as  sustaining  the  same 
proposition,  Carey  v.  Houston  &  T. 
K.  Co.,  150  U.  S.  170,  14  Sup.  Ct. 
Eep.  63,  37  L.  ed.  1041;  Ex  parte 
Lennon,  150  U.  S.  395,  14  Sup.  Ct. 
Eep.  123,  37  L.  ed.  1121;  Northern 
P.  E.  Co.  v.  Amato,  144  U.  S.  465, 
12  Sup.  Ct.  Eep.  740,  36  L.  ed.  506; 
Sayward  v.  Denny,  158  U.  S.  180,  15 
Sup.  Ct.  Eep.  777,  39  L.  ed.  941.  It 
is  not  competent  for  an  assignment  of 
errors  to  import  questions  into  a  cause 


which  the  record  does  not  show  were 
raised  in  the  court  below  and  rulings 
asked  thereon,  so  as  to  give  jurisdic- 
tion to  the  supreme  court  of  the 
United  States  under  the  fifth  section 
of  the  act  of  March  3,  1891.  Ansbro 
v.  United  States,  159  U.  S.  698,  16 
Sup.  Ct.  Eep.  189,  40  L.  ed.  311. 

31  Muse  v.  Arlington  Hotel  Co.,  168 
U.   S.  430,  18  Sup.  Ct.  Eep.  Ill,  42 
L.  ed.  531. 

32  Borgmeyer    v.    Idler,    159    U.    S. 
408,   16  Sup.  Ct.  Eep.  34,  40  L.  ed. 
199. 


109  CONSTRUCTION  OF  TREATIES,  ETC. 


CHAPTER   VII. 

CONSTRUCTION.   OF  TREATIES  AND  EXTENT  OF  TREATY-MAKING 

POWER. 

§  115.  Construction  of  treaties  a  judicial  question. 

§  116.  Interpretation  in  spirit  of  good  faith. 

§  117.  Intention  to  be  carried  out. 

§  118.  Treaties  in  two  languages. 

§  119.  Instructions  to  diplomatic  officers. 

§  120.  Both   are   originals. 

§  121.  Construction  favorable  to  execution  of  treaty. 

§  122.  Vague  and  indefinite  terms. 

§  123.  Whole  treaty  to  be  taken  together. 

§  124.  Right   of  property   in   award. 

§  125.  Liberal  construction. 

§  126.  Repugnant  clauses. 

§  127.  Construed  as  a  law. 

§  128.  Courts  cannot  question  rights  recognized  by  nation. 

§  129.  Jurisdiction  of  crime  on  foreign  ship. 

§  130.  Rule  declared  by  supreme  court  of  United  States. 

§  131.  Most  favored  nation  clause. 

§  132.  Rules  of  construction  codified. 

§  133.  Extent  of  treaty-making  power. 

§   134.  General  terms  used. 

§  135.  Comments. 

§  136.  Chancellor  Kent's  views. 

§  137.  Other  expressions. 

§  138.  Difference  between  delegation  of  treaty-making  power  and  legisla- 
tive power. 

§  139.  Expressions  of  courts. 

§  140.  Extends  to  all  proper  subjects  of  negotiation., 

§  141.  Comments. 

§  142.  Views  of  Mr.  Butler. 

§  143.  Comments. 

§  144.  Panama  canal  zone. 

§  145.  Right  to  attend  public  schools. 

§  146.  Treaty  provisions. 

§  147.  Constitution  and  statutes  of  California. 

§  148.  Resolution  as  to  Japanese  children. 

§  149.  Debate  in  United  States  Senate. 

§  150.  Position  of  the  United  States. 

§  151.  Views  of  Mr.  Lewis. 

§  152.  Same  subject — Is  the  treaty-making  power  limited  or  unlimited. 


§    115]  CONSTRUCTION  OF  TREATIES,  ETC.  110 

§  153.  Same  subject — Limitation  by  words  of  Constitution. 

§  154.  The  tenth  amendment. 

§  155.  No  question  of  state  rights  involved. 

§  156.  Implied  limitations  upon  treaty-making  power. 

§  157.  Same  subject — Mr.  Boot's  views. 

§  158.  Distribution  of  governmental  powers. 

§  159.  Suits  by  the  government. 

§  160.  Colored  children  and  the  public  schools. 

§  161.  Same  facilities  for  education  to  be  afforded. 

§  115.     Construction  of    treaties  a    judicial    question. — If  a 

treaty  is  silent  as  to  the  method  of  deciding  questions  of  indi- 
vidual identity,  they  must  be  decided  by  the  courts;1  and  where 
a  treaty  has  the  effect  of  creating  or  vesting  individual  rights, 
the  meaning  of  the  treaty  as  to  such  rights  is  to  be  ascertained 
by  the  same  rules  that  would  prevail  in  the  case  of  private  con- 
tracts.2 When  not  repugnant  to  the  language  or  purpose  of  the 
treaty,  the  construction  of  treaties  adopted  by  the  executive  de- 
partment should  be  followed  by  the  courts.3 

The  treaty  with  Spain  provides  that  ''requisitions  for  the 
surrender  of  fugitives  from  justice  shall  be  made  by  the  respec- 
tive diplomatic  agents  of  the  contracting  parties,"  and  that  "it 
shall  be  competent  for  such  representatives  or  such  superior  con- 
sular officers  to  ask  and  obtain  a  mandate  or  preliminary  war- 
rant of  the  arrest  for  the  person  whose  surrender  is  sought," 
whereupon  the  judges  shall  have  power,  upon  complaint  made 
under  oath,  to  issue  a  warrant  for  the  apprehension  of  the  per- 
son charged.  This  provision  was  held  to  be  permissive  only, 
and  not  obligatory,  and  that  the  demanding  government  might, 
at  its  option,  proceed  under  section  5270  of  the  Revised 
Statutes  without  a  preliminary  mandate,  or  might  demand  it 
under  the  treaty  provisions.4  If,  however,  such  a  preliminary 
mandate  is  made  prerequisite  by  the  treaty,  it  is  said  that  it 
should  be  set  forth  upon  the  face  of  the  warrant.5  It  is  not  in- 

1  Stockton  v.   Williams,   Walk.   Ch.  sity  of  a  preliminary  mandate  under 
120.  certain    treaties,    Ex   parte    Kaine,    3 

2  Anderson    v.    Lewis,    Freem.    Ch.  Blatchf.  1,  Fed.  Gas.  No.  7597;  Case 
178.  of   McDonnell,    11    Blatchf.    79,   Fed. 

3  Castro  v.  De  Uriarte,  16  Fed.  93.  Cas.     No.     8771;     Case     of    Herman 

4  Castro  v.  De  Uriarte,  16  Fed.  93.  Thomas,    12   Blatchf.    370,   Fed.    Cas. 

5  Case  of  Farez,  7  Blatchf.  34,  Fed.  No.   13,887. 
Cas.  No.  4644.     See  as  to  the  neces- 


Ill 


CONSTRUCTION  OF  TREATIES  A  JUDICIAL  QUESTION.         [§    115 


competent  for  Congress  to  pass  laws  in  aid  of  a  treaty,  although 
a  treaty  may  provide  a  mode  for  carrying  out  its  provisions.6 

By  the  treaty  between  Spain  and  the  United  States  for  the  ces- 
sion of  the  Floridas,  no  provision  was  made  for  a  tribunal  to 
decide  upon  the  claims  arising  from  injuries  suffered  by  the 
operations  of  the  American  army  in  Florida,  but  the  appointment 
of  such  a  tribunal  was  left  by  the  treaty  to  be  made  by  the 
government  of  the  United  States.7  A  treaty  is  a  contract  as  well 
as  a  law,  and  its  construction  should  be  such  as  to  give  full  effect 
to  all  its  parts.8 


9  Castro  v.  De  Uriarte,  16  Fed.  93. 

7  Humphrey's       Administrator       v. 
United  States,  Dev.   Ct.   of  Cl.,  sees. 
678,  679. 

8  Goetze  v.  United  States,  103  Fed. 
72.     "Treaties   are   subjected  to   the 
following  general  rules,  which  govern 
all  contractual  engagements: 

"(1)  There  must  be  a  concurrence 
of  minds  to  one  and  the  same  thing. 

"  (2)  The  interpretation  of  obscure 
terms  in  a  treaty  is  a  matter  of  fact, 
as  to  which  extrinsic  evidence  may  be 
taken  for  the  purpose  of  explaining 
objective  obscurity. 

"(3)  Construction  of  treaties  is  a 
matter  of  law,  to  be  governed  by  the 
same  rules  mutatis  mutandis,  as  pre- 
vail in  the  construction  of  contracts 
and  statutes. 

"(4)  As  contracts  may  be  modi- 
fied and  rescinded,  so  may  treaties. 

"  (5)  Immoral  stipulations  are  void 
in  treaties  as  tney  are  in  contracts. 

"(6)  ' Construction'  is  to  be 
distinguished  from  '  interpretation. ' 
'Construction'  gives  the  general  sense 
of  a  treaty  and  is  applied  by  rules 
of  logic;  'interpretation'  gives  the 
meaning  of  particular  terms,  to  be 
explained  by  local  circumstances  and 
by  the  idioms  the  framers  of  the 
treaty  had  in  mind. 

"(7)  If  two  meanings  are  admis- 
sible, that  is  to  be  preferred  which 


the  party  proposing  the  clause  knew 
at  the  time  to  be  that  which  was  held 
by  the  party  accepting  it. 

"Treaties  are  distinguishable  from 
contracts  as  follows: 

"(1)  Contracts  (unless  we  regard 
marriage  as  a  contract)  are,  in  all 
cases,  the  subjects  of  a  suit  for  debt 
or  damages,  or  for  a  specific  thing. 
But  no  such  suit  lies  on  breach  of 
duty. 

"(2)  Contracts  can  only  be  va- 
cated or  rescinded  by  consent,  or  by 
the  action  of  a  court.  But  this  is 
not  necessarily  the  case  with  a  treaty. 
There  is  no  court  which  can  be  ap- 
pealed to  to  dissolve  it,  and  to  de- 
clare it  not  to  be  any  longer  binding. 

"(3)  While  a  contract  may  be  an- 
nulled on  the  ground  of  fraudulent  in 
fluence  exercised  by  strength  over 
weakness,  such  a  reason  cannot  be 
set  up  for  regarding  a  treaty  as  a 
nullity,  since  all  nations  are  supposed 
to  stand  on  the  same  footing,  with 
equal  opportunities  of  detecting  fraud, 
and  there  are  many  cases  of  finesse 
and  false  coloring  or  suppression  of 
facts  which  would  avoid  contracts, 
which  would  not,  mutatis  mutandis, 
avoid  a  treaty.  If  suppressio  veri 
abrogated  treaties  to  the  extent  it 
abrogates  contracts,  few  treaties 
would  stand. 


§§  116,  117]     CONSTRUCTION  OF  TREATIES,  ETC.  112 

§  116.  Interpretation  in  spirit  of  good  faith. — A  convention 
in  a  treaty  binding  both  of  the  contracting  powers,  and  intended 
for  their  mutual  protection,  should  be  interpreted  in  a  spirit  of 
uberrima  fides.  Such  a  construction  should  be  adopted  as  will 
carry  out  the  manifest  purpose  of  the  treaty.9 

"As  treaties  are  solemn  engagements,"  said  Mr.  Justice 
Brown,  "entered  into  between  independent  nations  for  the  com- 
mon advancement  of  their  interests  and  the  interests  of  civiliza- 
tion, and  as  their  main  object  is  not  only  to  avoid  war  and  se- 
cure a  lasting  and  perpetual  peace,  but  to  promote  a  friendly 
feeling  between  the  people  of  the  two  countries,  they  should  be 
interpreted  in  that  broad  and  liberal  spirit  which  is  calculated 
to  make  for  the  existence  of  a  perpetual  amity,  so  far  as  it 
can  be  done  without  the  sacrifice  of  individual  rights  or  those 
principles  of  personal  liberty  which  lie  at  the  foundation  of  our 
jurisprudence. ' ' 10 

Chancellor  Kent  declares  that  treaties  "are  to  receive  a  fair 
and  liberal  interpretation  according  to  the  intention  of  the  con- 
tracting parties,  and  to  be  kept  with  the  most  scrupulous  good 
faith.  Their  meaning  is  to  be  ascertained  by  the  same  rules  of 
construction  and  course  of  reasoning  which  we  apply  to  the 
interpretation  of  private  contracts. ' ' 11 

§  117.  Intention  to  be  carried  out. — As  a  corollary  to  the 
proposition  that  treaties  should  be  construed  in  good  faith,  it 
results  that  the  intention  of  the  contracting  parties  should  be 
effectuated.  The  treaty  of  1832  with  Russia  authorizes  the  ar- 
rest and  surrender  of  deserters  from  the  ships  of  war  of  that 

"(4)   A  treaty  based  upon  a  war  demned. '  "     Wharton's  Int.  Law  Di- 

accepts    the     results     determined    by  gest,   sec.    133,   II,   36,  citing  Kent's 

the    war,    unless    otherwise    provided,  Commentaries,  173,  as  citing  The  Le- 

while  a  contract  does  not  necessarily  gal  Tender,  reported  in  Wheat.  Dig. 

assume   the   existing   relations   of   the  302;    The    Schooner    Sophie,    6    Eob. 

parties   as   a    basis.     'The   uti  possl-  Aclm.  138. 

detis  is  the  basis  of  every  treaty  of  9  Tucker  v.  Alexandroff,  183  U.  S. 

peace,  unless  it  be  otherwise  agreed.  424,  22  Sup.  Ct.  Eep.  195,  46  L.  ed. 

Peace  gives  a  final  and  perfect  title  264. 

to     captures     without     condemnation,  10  Tucker  v.  Alexandroff,  183  U.  S. 

and,   as   it   forbids   all   force,   it    de-  437,  22  Sup.  Ct.  Eep.  195,  46  L.  ed. 

stroys  all  hopes  of  recovery   (of  ves-  270. 

sels)    as   much   as   if   the   vessel  was  n  1  Kent's  Commentaries,  174. 
carried     infra     proesidia,     and     con- 


113  TREATIES    IN    TWO    LANGUAGES.  [§    118 

country.  A  vessel,  launched,  but  still  in  process  of  construction 
under  a  contract  to  build  a  protected  cruiser  for  the  Russian 
government,  is  a  Russian  ship  of  war,  within  the  purview  of  this 
provision,  although  by  the  terms  of  the  contract  the  vessel  may 
be  rejected  for  deficiency  in  speed  or  excess  in  draught;  and  dur- 
ing her  construction  is  at  the  risk  of  the  contractors  until  actual 
acceptance,  where  it  is  also  provided  by  the  contract  that  the 
vessel  shall  be  constantly  subject  to  inspection  by  a  board  of 
Russian  officers,  and  that  all  materials  intended  for  the  construc- 
tion of  the  vessel  when  brought  upon  the  premises  of  the  con- 
tractors shall  become  the  exclusive  property  of  the  foreign  gov- 
ernment.12 

The  presumption  can  never  be  indulged  in  that  either  state 
intends  to  provide  the  means  of  perpetrating  or  protecting 
frauds,  and  all  the  provisions  of  the  treaty  are  to  be  construed 
as  if  they  were  intended  to  be  applied  to  bona  fide  transactions.13 
A  monopoly,  void  by  the  common  law  and  the  laws  of  the 
United  States,  but  valid  and  patented  by  the  law  of  Spain,  will 
be  considered  private  property  within  the  protection  of  a  treaty.14 

§  118.  Treaties  in  two  languages. — Treaties  between  the  Euro- 
pean powers  were,  until  about  the  beginning  of  the  eighteenth 
century,  generally  written  in  Latin.  Since  that  time  the  custom 
has  been  for  negotiators  of  countries  which  do  not  use  the  same 
language  to  prepare  their  treaties  in  the  language  of  the  signa- 
tory powers.  The  treaties  of  the  United  States  with  Russia  form 
an  exception  to  the  general  rule,  as  most  of  them  have  been 
written  in  French  and  English.15 

Mr.  Jay,  Secretary  of  Foreign  Affairs,  on  June  23,  1785,  in 
transmitting  to  the  President  of  Congress  the  consular  convention 
with  France  concluded  by  Dr.  Franklin,  remarked  that  it  ap- 
peared to  be  in  the  French  language,  but  he  observed  that  it 
seemed  expedient  to  provide  in  the  future  that  "every  treaty 

12  Tucker  v.  Alexandroff,  183  U.  S.  13  United    States    v.    Amistead,    15 

437,  22  Sup.  Ct.  Eep.  195,  46  L.  ed.  Pet.   518,   10  L.  ed.  826. 

270.     A   dissenting  opinion  was  filed  14  O  'Beilly    De    Camera  v.  Brooke, 

by  Mr.  Justice  Gray,  with  whom  Mr.  135    Fed.    384. 

Chief  Justice  Fuller  and  Justices  Har-  "  Mr.  Fish,  Secretary  of  State,  to 

Ian   and   White   concurred.  Miss  Fraser,  November  18,  1874,  105 

MS.  Dom.  Let.  221. 
Treaties — 8 


§§  119,  120]     CONSTRUCTION  OF  TREATIES,  ETC.  114 

or  convention  which  Congress  may  think  proper  to  engage  in 
should  be  formally  executed  in  two  languages,  viz.,  the  language 
of  the  United  States  and  such  other  language  as  the  party  con- 
tracting with  them  may  prefer."  16 

§  119.  Instructions  to  diplomatic  officers. — Where  English  is 
not  officially  employed,  the  standing  instructions  of  diplomatic 
officers  of  the  United  States  are,  as  to  the  language  of  treaties: 
"(a)  The  texts  in  the  two  languages  should  be  engrossed  in 
parallel  columns  on  the  same  page,  if  possible,  or  on  opposite 
pages  of  the  same  sheet.  Two  separate  copies  in  different  lan- 
guages are  not  advisable,  although  this  expedient  is  sometimes 
resorted  to  in  eastern  countries,  (b)  In  the  copy  of  the  treaty 
to  be  retained  by  the  diplomatic  representative  for  transmission 
to  this  government,  the  United  States  should  be  named  first 
throughout  both  texts  in  all  places  where  the  alternative  change 
may  be  made  conveniently.  Conversely,  in  both  texts,  through- 
out the  copy  the  foreign  government  is  to  retain,  it  should 
be  first  named,  (c)  The  language  of  the  respective  govern- 
ment should  always  occupy  the  left-hand  place  in  the  copy  to  be 
delivered  to  it.  (d)  The  utmost  care  should  be  taken  to  insure 
the  substantial  equivalence  of  sense  of  the  two  texts,  so  as  to 
exclude  any  erroneous  effect  due  to  translation.  Though  a  strictly 
liberal  translation  is  often  harsh  and  sometimes  impossible  the 
absolute  identity  of  the  idea  conveyed  is  indispensable.  To  this 
end,  the  punctuation  of  the  two  texts  should  also  be  attentively 
scrutinized  and  brought  into  substantial  conformity."17 

« 

§  120.  Both  are  originals. — Where  a  treaty  is  executed  in  two 
different  languages,  both  are  considered  as  originals,  and  they 
must  be  construed  together.18 

Where  a  treaty  between  the  United  States  and  France  is  formu- 
lated both  in  the  French  and  English  languages,  both  being 
originals  and  intended  to  be  identical,  but  in  some  particulars 
differing,  such  a  construction  will  be  given  to  them  as  will  es- 
tablish conformity  between  them,  if  possible,  without  doing  vio- 

16  1    MS.    Am.    Let.    311.  18  United    States    v.    Percheman,    7 

17  Instructions    to    Diplomatic    Offi-       Pet.  51,  8  L.  ed.  604. 
cers  of  the  United  States,  1897,  sec. 

245,   p.    100. 


115  CONSTRUCTION  FAVORABLE  TO  EXECUTION  OF  TREATY.  [§§  121,  122 

lence  to  the  terms  of  either.19  The  text  in  each  language  is 
considered  as  the  equivalent  of  the  other,  and  in  a  certain  sense 
as  explanatory  of  it,  and  by  this  interpretation  the  two  texts 
have  a  common  meaning.  Both  parties  to  the  treaty  stand  on  the 
same  footing  of  equality,  and  the  object  sought  to  be  attained 
by  them  has  been  accomplished.20 

§  121.    Construction  favorable  to  execution  of  treaty. — If  a 

treaty  admits  of  two  constructions,  preference  will  be  given  to 
that  construction  which  is  more  favorable  to  its  execution  as 
designed  by  the  parties.21  It  is  like  an  ordinary  contract  or  stat- 
ute. Effect  should  be  given  to  it,  if  possible.  Courts,  to  en- 
able them  properly  to  construe  a  treaty,  have  a  right  to  take  into 
consideration  the  situation  of  the  parties  at  the  time  of  its  execu- 
tion, the  property  which  constitutes  the  subject  matter  of  the 
treaty,  and  the  intention  and  purposes  of  the  parties.  The  con- 
struction of  a  treaty  which  has  been  adopted  and  acted  upon  by 
all  the  parties  to  it  will  be  taken  as  the  true  one,  unless  the  par- 
ties were,  by  fraud  or  mistake,  mutually  led  into  this  construc- 
tion. If  the  mutual  construction  is  in  the  face  of  the  language  used, 
and  the  rights  of  third  parties  have  intervened,  the  language  of 
the  treaty  will  control.22 

§  122.  Vague  and  indefinite  terms. — If  a  treaty  uses  terms 
vague  and  indefinite,  the  nature  of  the  thing  to  which  they  relate 
should  be  regarded  for  the  purpose  of  ascertaining  the  intention. 
Such  a  construction  should  be  given  to  these  terms  as  will  be  in  ac- 
cordance with  reason,  and  without  injury  to  either  will  subserve 
the  convenience  of  both  the  contracting  parties.23 

A  preamble  to  a  treaty  does  not,  strictly  speaking,  constitute 
a  part  of  the  contract.  But  inasmuch  as  it  is  authenticated 
by  the  signatures  of  the  contracting  parties,  its  averments  are  to 
be  treated  as  admitted  truths.24 

19  In  re   Metzger,   1   Barb.    248.  21  United    States    v.    Payne,    2    Mc- 

20  See  note  of  Mr.  Hay,  Secretary       Crary,  289,  8  Fed.  883. 

of    State,    to   Mr.   Beaupre,   No.    331,  ~2  United    States    v.    Payne,    2    Mc- 

November  6,   1900,  MS.   Inst.   Colom-       Crary,   289,    8   Fed.   883. 
bia,   XIX,   123.  23  Howard  v.  Ingersoll,  17  Ala.  780. 

24  Little  v.  Watson,  32  Me.  214. 


§§  123,  124]     CONSTRUCTION  OF  TREATIES,  ETC.  116 

The  treaty  of  1783  with  Great  Britain  contained  a  clause  that 
there  should  be  no  confiscations  or  prosecutions  for  anything  done 
during  the  war,  but  this  provision,  it  was  determined,  could  not 
be  construed  as  excusing  trespassers  from  liability  for  damage 
in  civil  suits  brought  to  obtain  judgments  for  damages.25 

§  123.  Whole  treaty  to  be  taken  together. — It  was  said  by  Mr. 
Livingston,  Secretary  of  State :  ' '  There  is  no  rule  of  construction 
better  settled  either  in  relation  to  covenants  between  individuals 
or  treaties  between  nations  than  that  the  whole  instrument  con- 
taining the  stipulation  is  to  be  taken  together,  and  that  all 
articles  in  pari  materia  should  be  considered  as  parts  of  the  same 
stipulations. ' ' 2Q 

Reference  cannot  be  made  to  the  supplemental  article  of  the 
treaty  of  1800,  by  which  the  spoliation  claims  were  released  to 
France  for  the  purpose  of  explaining  the  preceding  articles, 
where  such  supplemental  article  was  not  appended  to  the  treaty 
until  ten  months  after  the  treaty  was  signed.27 

§  124.  Right  of  property  in  award. — Although  an  award  has 
been  made  pursuant  to  the  terms  of  a  treaty,  it  is  competent  for 
the  government  to  negotiate  for  the  retrial  of  any  claim  allowed, 
and  to  withhold  the  amount  of  such  claim  pending  the  negotia- 
tions. There  is  no  right  of  property  in  the  citizen  of  one  country 
in  the  amount  awarded  to  him  that  is  not  subject  to  the  control 
of  his  government.  The  persons  presenting  claims  are  not  par- 
ties to  the  treaty,  and  while  between  the  two  governments  the 
awards  are  final,  yet  one  country  may  treat  with  another  for  a  re- 

25  Whitaker 's  Administrator  v.  Eng-  drid    of    March    21,    1801,    was    the 
lish,  1  Bay,  15.  transfer   by   the    King    of    Spain   of 

26  Mr.     Livingston,      Secretary     of  the    sovereignty    of    Louisiana  to  the 
State,  to  Baron  Lederer,  Consul-Gen-  French    Eepublic    complete.      Spain 
eral   of   Austria,   November   5,    1832,  continued    to    be    the    sovereign    de 
MS.  Notes  to  For.  Leg.,  V,  63.  facto,  and  the  terms  of  these  treaties 

27  The  Tom,  29  Ct.  of  Cl.  68;  Eng-  do  not  necessarily  import  a  change 
lish  v.  United  States,  Id.;  Boutwell  of  sovereignty  de  jure,  but  only  ex- 
v.    United    States,    Id.;    Atkinson    v.  press  the  idea  of  a  promise  to  cede 
United   States,   Id.;    Hunt   v.   United  on  the  performance  of  certain  condi- 
States,  Id.     It  was  held  that  neither  tions     precedent.      Kenton     v.    Bar- 
by    the   treaty    of    San    Ildefonso    of  oness  of  Pontalba,  1  Rob.  343. 
October  1,  1800,  nor  by  that  of  Ma- 


117 


BIGHT  OF  PROPERTY  IN   AWARD. 


§  124 


trial.  If  our  government  should  discover  that  it  had  been  made 
the  instrument  for  imposition  upon  a  friendly  power,  the  highest 
principles  of  national  good  faith  require  it  to  make  reparation  as 
far  as  possible.28 

Thus,  the. treaty  between  the  United  States  and  Mexico  of  1868 
provided  for  the  submission  to  a  commission  to  be  created  under 
a  treaty  of  all  claims  of  the  United  States,  and  that  the  award 
should  be  a  full,  perfect  and  final  settlement  as  between  the 
parties.  While  it  was  admitted  that  the  awards  were  final  and 
conclusive  between  the  United  States  and  Mexico  until  set  aside 
by  an  agreement  between  the  two  governments,  yet,  it  was  held 
that  the  United  States  might  negotiate  with  Mexico  for  a  retrial 
of  a  particular  award  on  account  of  the  alleged  fraudulent  char- 
acter of  the  proof  offered  to  sustain  the  claim.29  The  view  taken 


28  Frelinghuysen   v.    United    States, 
110  U.  S.  63,  3  Sup.  Ct.  Rep.  462,  28 
L.  ed.   71. 

29  Frelinghuysen    v.  United   States, 
110  U.  S.  63,  3  Sup.  Ct.  Rep.  462,  28 
L.  ed.  71.     Mr.  Chief  Justice  Waite, 
in  delivering  the  opinion  of  the  court, 
said: 

"There  is  no  doubt  that  the  pro- 
visions of  the  Convention  as  to  the 
conclusiveness  of  the  awards  are  as 
strong  as  language  can  make  them. 
The  decision  of  the  commissioners  of 
the  umpire,  on  each  claim,  is  to  be  ab- 
solutely final  and  conclusive  and  with- 
out appeal.  The  President  of  the 
United  States  and  the  President  of 
the  Mexican  Republic  are  to  give  full 
effect  to  such  decisions,  without  any 
objection,  evasion  or  delay  whatso- 
ever, and  the  result  of  the  proceed- 
ings of  the  commission  is  to  be  con- 
sidered 'a  full,  perfect  and  final  set- 
tlement of  every  claim  upon  either 
Government,  arising  out  of  transac- 
tions prior  to  the  exchange  of  the 
ratifications  of  the  ....  Conven- 
tion. '  But  this  is  to  be  construed  as 
language  used  in  a  compact  of  two 
nations  '  for  the  adjustment  of  the 


claims  of  the  citizens  of  either  .... 
against  the  other, '  entered  into  l  To 
increase  the  friendly  feeling  between' 
republics  and  so  to  strengthen  the 
system  and  principles  of  republican 
government  on  the  American  conti- 
nent. No  nation  treats  with  a  citi- 
zen of  another  nation,  except  through 
his  government.  The  treaty,  when 
made,  represents  a  compact  between 
the  governments,  and  each  government 
holds  the  other  responsible  for  every- 
thing done  by  their  respective  citizens 
under  it.  The  citizens  of  the  United 
States  having  claims  against  Mexico 
were  not  parties  to  this  Convention. 
They  induced  the  United  States  to 
assume  the  responsibility  of  seeking 
redress  for  injuries  they  claimed  to 
have  sustained  by  the  conduct  of 
Mexico,  and  as  a  means  of  obtaining 
such  redress  the  Convention  was  en- 
tered into,  by  which  not  only  claims 
of  citizens  of  the  United  States 
against  Mexico  were  to  be  adjusted 
and  paid,  but  those  of  citizens  of 
Mexico  against  the  United  States  as 
well.  By  the  terms  of  the  compact, 
the  individual  claimants  could  not 
themselves  submit  their  claims  and 


§  124] 


CONSTRUCTION  OF  TREATIES,  ETC. 


118 


by  the  court  was  that  the  citizens  of  the  respective  countries 
were  not  parties  to  the  treaty,  because  a  treaty  is  a  compact 
between  governments,  and  one  government  holds  the  other  re- 
sponsible for  all  acts  performed  by  its  citizens  under  the  treaty. 


proofs  to  the  commission  to  be 
passed  upon.  Only  such  claims  as 
were  presented  to  the  Governments 
respectively  could  be  referred  to  the 
commission,  and  the  commissioners 
were  not  allowed  to  investigate  or 
decide  on  any  evidence  or  informa- 
tion except  such  as  was  furnished 
by  or  on  behalf  of  the  Govern- 
ments. After  all  the  decisions  were 
made  and  the  business  of  the  com- 
mission concluded,  the  total  amount 
awarded  to  the  citizens  of  one 
country  was  to  be  deducted  from 
the  amount  awarded  to  the  citizens  of 
the  other,  and  the  balance  only  paid 
in  money  by  the  Government,  in  favor 
of  whose  citizens  the  smaller  amount 
was  awarded,  and  this  payment  was 
to  be  made,  not  to  the  citizens  but 
to  their  Government.  Thus,  while  the 
claims  of  the  individual  citizens  were 
to  be  considered  by  the  commission 
in  determining  amounts,  the  whole 
purpose  of  the  Convention  was  to 
ascertain  how  much  was  due  from 
one  Government  to  the  other  on  ac- 
count of  the  demands  of  their  re- 
spective citizens. 

"As  between  the  United  States 
and  Mexico  the  awards  are  final  and 
Conclusive  until  set  aside  by  agree- 
ment between  the  two  Governments 
or  otherwise.  Mexico  cannot,  under 
the  terms-  of  the  Treaty,  refuse  to 
make  the  payments  at  the  times 
agreed  on  if  required  by  the  United 
States.  This  she  does  not  now  seek  to 
do.  Her  payments  have  all  been  made 
promptly  as  they  fell  due,  as  far  as 
these  records  show.  What  she  asks 
is  the  consent  of  the  United  States 


to  her  release  from  liability  under 
the  Convention  on  account  of  the  par- 
ticular awards  now  in  dispute,  be- 
cause of  the  alleged  fraudulent  char- 
acter of  the  proof  in  support  of  the 
claims  which  the  United  States  were 
induced  by  the  claimants  to  furnish 
for  the  consideration  of  the  commis- 
sion. 

"As  to  the  right  of  the  United 
States  to  treat  with  Mexico  for  a 
retrial,  we  entertain  no  doubt.  Each 
Government,  when  it  entered  into  the 
compact  under  which  the  awards  were 
made,  relied  on  the  honor  and  good 
faith  of  the  other  for  protection  as 
far  as  possible  against  frauds  and 
impositions  by  the  individual  claim- 
ants. Itv  was  for  this  reason  that  all 
claims  were  excluded  from  the  con- 
sideration of  the  commission  except 
such  as  should  be  referred  by  the  sev- 
eral Governments,  and  no  evidence  in 
support  of  or  against  a  claim  was  to 
be  submitted  except  through  or  by 
the  Governments.  The  presentatiou 
by  a  citizen  of  a  fraudulent  claim  or 
false  testimony  for  reference  to  the 
commission  was  an  imposition  on  his 
own  Government,  and  if  that  Gov- 
ernment afterwards  discovered  that 
it  had  in  this  way  been  made  an  in- 
strument of  wrong  towards  a  friendly 
power,  it  would  be  not  only  its  right 
but  its  duty  to  repudiate  the  Act  and 
make  reparation  as  far  as  possible 
for  the  consequences  of  its  neglect  if 
any  there  had  been.  International 
arbitration  must  always  proceed  on 
the  highest  principles  of  national 
honor  and  integrity.  Claims  pre- 
sented and  evidence  submitted  to 


119  LIBERAL  CONSTRUCTION.  [§    125 

In  entering  into  the  award,  each  government  relied  upon  the 
honor  of  the  other,  for  protection  against  fraudulent  claims, 
and,  hence,  when  a  citizen  presented  a  false  claim,  he  imposed 
upon  his  own  government,  which  might,  as  a  matter  of  duty, 
when  it  became  aware  of  the  fraud,  make  reparation  as  far  as 
it  lay  in  its  power  so  to  do. 

§  125.  Liberal  construction. — The  general  rule  of  the  construc- 
tion of  treaties  is  that  they  shall  be  liberally  construed  for  the 
purpose  of  effectuating  the  apparent  intention  of  the  parties  to 
obtain  equality  and  reciprocity  between  them,  and  words  are  to 
be  taken  in  their  ordinary  signification  as  they  are  understood  in 
the  public  law  of  nations.  They  are  not  to  be  understood  in  any 
artificial  or  special  sense  that  may  be  placed  upon  them  by  local 
law,  unless  it  is  clear  that  such  restricted  sense  was  intended.30 

Vattel  says:  "The  reason  of  the  law  or  of  the  treaty — that 
is  to  say,  the  motive  which  led  to  the  making  of  it,  and  the 
object  in  contemplation  at  the  time — is  the  most  certain  clue  to 
lead  us  to  the  discovery  of  its  true  meaning ;  and  great  attention 
should  be  paid  to  this  circumstance,  whenever  there  is  question 
either  of  explaining  an  obscure,  ambiguous,  indeterminate  pas- 
such  a  tribunal  must  necessarily  bear  ceeds  of  international  awards  after 
the  impress  of  the  entire  good  faith  they  have  passed  beyond  the  reach  of 
of  the  government  from  which  they  the  government's  and  into  the  hands 
come,  and  it  is  not  to  be  presumed  of  private  parties.  The  language  of 
that  any  government  will  for  a  mo-  the  opinions  must  be  construed  in 
ment  allow  itself  knowingly  to  be  connection  with  this  fact.  The  opin- 
made  the  instrument  of  wrong  in  ion  of  the  Attorney  General  in  Gibbs' 
any  such  proceeding.  No  technical  Case,  13  Ops.  Attys.  Gen.  19,  re- 
rules  of  pleading  as  applied  in  munic-  lated  to  the  authority  of  the  execu- 
ipal  courts  ought  ever  to  be  allowed  tive  officers  to  submit  the  claim  of 
to  stand  in  the  way  of  the  national  Gibbs  to  the  second  commission  after 
power  to  do  what  is  right  under  all  it  had  been  passed  on  by  the  first, 
the  circumstances.  Every  citizen  who  without  any  new  treaty  between  the 
asks  the  intervention  of  his  own  gov-  Governments  to  that  effect,  not  to 
ernment  against  another  for  the  re-  the  power  to  make  such  a  treaty. ' ' 
dress  of  his  personal  grievances  must  "°  De  Geofroy  v.  Biggs,  133  U.  S. 

necessarily  subject  himself  and  his  258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed. 
claim  to  these  requirements  of  in-  642;  In  re  Wyman,  191  Mass.  276, 
ternational  comity.  None  of  these  114  Am.  St.  Rep.  601,  77  N.  E.  379. 
cases  cited  by  counsel  are  in  opposi-  See,  also,  United  States  v.  Auguisola, 
tion  to  this.  They  all  relate  to  the  1  Wall.  352,  17  L.  ed.  613. 
disposition  to  be  made  of  the  pro- 


§    126]  CONSTRUCTION  OF  TREATIES,  ETC.  120 

sage  in  a  law  or  treaty,  or  of  applying  it  to  a  particular  case. 
When  once  we  certainly  know  the  reason  which  alone  has  deter- 
mined the  will  of  the  person  speaking,  we  ought  to  interpret 
and  apply  his  words  in  a  manner  suitable  to  that  reason  alone ; 
otherwise,  he  will  be  made  to  speak  and  act  contrary  to  his  in- 
tention, and  in  opposition  to  his  own  views. ' ' 31 

If  two  constructions  can  be  placed  upon  a  treaty,  one  favorable 
to  rights  claimed  under  it,  the  other  restrictive,  preference  will 
be  given  to  the  favorable  construction.32 

§  126.  Repugnant  clauses. — As  a  treaty  under  the  Constitution 
is  equivalent  to  an  act  of  Congress,  a  treaty  repealing  a  prior  act 
of  Congress  and  an  act  of  Congress  repealing  a  prior  treaty  when 
they  are  in  conflict,  it  follows  that  the  rules  of  construction  ap- 
plied to  two  repugnant  or  inconsistent  statutes  will  prevail. 
President  Woolsey,  in  his  treatise  on  International  Law,  lays 
down  the  following  rules  of  construction  in  cases  of  repugnancy : 

"That  earlier  clauses  are  to  be  explained  by  later  ones,  which 
were  added,  it  is  reasonable  to  suppose,  for  the  sake  of  explana- 
tion, or  which  at  least  express  the  last  mind  of  the  parties.  So, 
also,  later  treaties  explain  or  abrogate  older  ones. 

"Special  clauses  have  the  preference  over  general,  and  for  the 
most  part  prohibitory  over  permissive. 

"In  treaties  made  with  different  parties  the  inquiry  in  cases 
of  conflict  touches  the  moral  obligation  as  well  as  the  meaning. 
Here  the  earlier  treaty  must  evidently  stand  against  the  later, 
and,  if  possible,  must  determine  its  import  where  the  two  seem 
to  conflict. 

"In  general,  conditional  clauses  are  inoperative,  as  long  as  the 
condition  is  unfulfilled;  and  are  made  null  when  it  becomes  im- 

31  Vattel,   bk.  II,  c.  17,  sec.  287.  than    a  liberal  one,  and  that  there  is 

32  Hauenstein    v.    Lynham,    100    U.  no     authority     for     reading     into     a 
S.  483,  25  L.  ed.  628.     But  it  is  also  treaty  under  the    guise   of    construc- 
held     that    as     treaties    between    na-  tion,     extraordinary     provisions     not 
tions     are     generally     drafted     with  necessary  to  give  full  effect  to  the  in- 
great   care   by   men   of  learning  and  tention     expressed.     The     Neck,     138 
experience,  accustomed  to  select  words  Fed.  144.     It  was  the  purpose  at  the 
that  will  express  precisely  and  fully  time  of  the  signature  of  the  treaty  of  • 
the  intent  of  the  contracting  parties,  1800    that     all   causes     of     difference 
the  construction  to  be  placed  upon  the  should  for  the  time  being  be  disposed 
treaty  should  be  a  reasonable  rather  of.     The  Tom,  39  Ct.  of  Cl.  290. 


121  CONSTRUED   AS  A  LAW.  [§§    127,    128 

possible.  Where  things  promised  in  a  treaty  are  incompatible, 
the  promisee  may  choose  which  he  will  demand  the  performance 
of,  but  here  and  elsewhere  an  act  of  expediency  ought  to  give 
way  to  an  act  of  justice. ' '  33 

§  127.  Construed  as  a  law. — A  treaty  is  as  much  a  part  of  the 
law  of  the  land  as  the  common  law  or  statutes.34  Whatever 
private  rights  may  exist,  they  must  always  be  subject  to  treaties 
made  between  sovereignties.  Individuals  seeking  an  indemnity 
under  such  circumstances  for  injuries  committed  must  look  to 
their  respective  governments.35 

The  boundary  between  Virginia  and  Tennessee  which  was  es- 
tablished between  these  states,  and  to  which  Congress  gave  con- 
sent, will  be  given  effect  as  the  true  boundary.36  Grants  made 
by  a  de  facto  government  of  land  in  its  possession,  it  was  held  in 
the  state  court,  were  valid  as  against  the  state  which  had  the 
right,37  but  on  appeal  to  the  supreme  court  of  the  United  States 
reversed  the  decision,  holding  that  the  grants  were  invalid  as 
against  the  government  to  which  the  territory  rightfully  be- 
longed.38 

§  128.    Courts  cannot  question  rights  recognized  by  nation. — 

A  treaty  made  by  proper  authority  becomes  the  law  of  the  land, 
and  there  is  no  power  in  the  courts  to  question  or  in  any  manner 
to  look  into  the  powers  or  rights  which  the  nation  with  whom  it 
was  made  recognizes;39  nor  can  courts  inquire  whether  a  treaty 
was  procured  by  undue  influence;40  nor  whether  the  person 
ratifying  it  on  behalf  of  the  foreign  nation  had  authority.41 
In  case  of  doubt,  the  inconveniences  that  would  result  from  a  con- 
struction contended  for  by  one  party  to  the  treaty  may  be  used 
as  an  argument  to  show  that  that  construction  cannot  be  con- 
formable to  the  intent  of  the  parties,  but  a  stipulation,  though  in- 

33  Woolsey's  Int.  Law,  sec.  113.  states.     Ehode     Island    v.    Massachu- 

a4  Jost  v.  Jost,  1  Mackey,  487.  setts,  12  Pet.  725,  9  L.  ed.  1261. 

35  Fleeter  v.  Poole,  1  McLean,  185  3T  Groover  v.  Coffee,  19  Fla.  79,  20 
Fed.    Gas.    No.   4860;    Poole   v.    Flee-  Fb.  81. 

ger,  11  Pet.  185,  9  L.  ed.  680,  where  3S  Coffee   v.   Groover,   123  U.   S.   1, 

case  is  affirmed.  8  Sup.  Ct.  Eep.  1,  31  L.  ed.  51. 

36  Virginia  v.  Tennessee,  148  U.  S.  39  Harden  v.  Ingersoll,  6  Mich.  373. 
525,  13  Sup.  Ct.  Rep.  736,  37  L.  ed.  40  Leighton    v.    United    States,    29 
545.     The  supreme  court  of  the  United  Ct.  of  Cl.  288. 

States    has    jurisdiction   to   ascertain  41  Doe   v.  Braden,  16  How.  (U.  S.) 

and  fix   disputed  boundaries  between       635,  14  L.  ed.     1090. 


§  129]  CONSTRUCTION  OF  TREATIES,  ETC.  122 

convenient,  must  be  fulfilled  if  it  be  explicit.42  It  is  not  neces- 
sary that  a  person  basing  his  claim  upon  the  provisions  of  a 
treaty  should  make  a  formal  claim  of  his  rights  under  the  treaty, 
because  treaties  are  a  part  of  the  law  of  every  state.43 

§  129.  Jurisdiction  of  crime  on  foreign  ship. — When  a  mer- 
chant vessel  of  one  country  enters  the  ports  of  another  for  the  pur- 
poses of  trade,  it  is  subject  to  the  laws  of  such  other  country,  un- 
less the  two  countries  have,  by  treaty  or  otherwise,  reached  some 
different  understanding  or  agreement.44 

The  owner  of  the  vessel  is  entitled  to  protection  from  the  gov- 
ernment, and  owes  such  allegiance  to  it  as  is  due  to  such  protec- 
tion. But  experience  has  demonstrated  that  commerce  would  be 
benefited  if  the  local  government  would  refrain  from  inter- 
ference with  the  internal  discipline  of  the  ship,  and  the  general 
regulation  of  the  rights  and  duties  of  the  officers  and  crew  among 
themselves.  If  crimes,  however,  are  committed  on  board  of  the 
vessel  of  such  a  character  that  they  disturb  the  peace  and  tran- 
quility  of  the  country  to  which  the  vessel  has  been  brought,  the 
local  tribunals  have  the  power  to  assert  their  authority,  and  the 
offenders  cannot,  by  the  principles  of  comity  or  usage,  claim  ex- 
emption from  the  operation  of  the  local  laws.  While  this  is 
the  general  public  law,  it  has  been  found  convenient  for  nations 
having  commercial  intercourse  to  enter  into  treaties  and  conven- 
tions to  settle  and  define  the  rights  and  duties  of  such  nations, 
and  thus  obviate  the  embarrassment  that  would  arise  from  the 
exercise  of  different  jurisdictions.  Under  the  convention  entered 
into  with  France  in  1788  for  the  purpose  of  defining  and  estab- 
lishing the  functions  and  privileges  of  their  respective  consuls, 
it  was  provided  that  the  consuls  should  exercise  police  power 
over  the  vessels  of  their  respective  nations.45 

42  Mr.      Livingston,      Secretary     of  of    Nations    in    Time  of  Peace,  229, 
State,  to  Baron  Lederer,  November  5,  sec.    159;     Creasy 's    Int.    Law,    167, 
1882,  MS.  Notes  to  For.  Leg.,  V,  63.  sec.    176;     Halleck's    Int.    Law,    1st 

43  Ehrlich  v.  Weber,  114  Tenn.  711,  ed.,    171.     This   is   the   rule    enforced 
88  S.  W.  188.  in  the  English  courts.     Kegina  v.  Cun- 

44  The  Exchange,  7  Cranch,   144,  3  ningham,  Bell  C.  C.  72;   S.  C.,  8  Cox 
L.  ed.   296;   United  States  v.  Diekel-  C.  C.  104;  Eegina  v.  Anderson,  11  Cox 
man,  92  U.  S.  520,  23  L.  ed.  742;   1  C.  C.  198;   S.  C.,  L.  R.  1  C.  C.  161; 
Phillmore  's     International     Law,     3d  Eegina  v.  Keyn,  13  Cox  C.  C.  403. 
ed.,    483,    sec.    CCCLI;    Twiss'    Law          4r>  8  Stats,  at  Large,  106. 


123      RULE  DECLARED  BY  SUPREME  COURT  OF  UNITED  STATES.       [§    130 

Two  cases  arose  under  this  convention,  in  one  of  which  an  as- 
sault was  committed  by  one  of  the  crew  upon  another,  and  the 
second  was  where  a  severe  wound  had  been  inflicted  by  the  mate 
upon  one  of  the  seamen  for  having  made  use  of  the  boat  with- 
out permission.46 

§  130.     Rule  declared  by  supreme  court  of  United  States. — The 

rule  declared  by  the  supreme  court  of  the  United  States  is:  "Dis- 
orders which  disturb  only  the  peace  of  the  ship  or  those  on 
board  are  to  be  dealt  with  exclusively  by  the  sovereignty 
of  the  home  of  the  ship,  but  those  which  disturb  the  public  peace 
may  be  suppressed,  and,  if  need  be,  the  offenders  punished  by  the 
proper  authorities  of  the  local  jurisdiction."47 

The  convention  between  the  United  States  and  Belgium,  con- 
cluded March  9,  1880,  contained  a  clause  that  consuls  "shall 
have  exclusive  charge  of  the  internal  order  of  the  merchant  ves- 
sels of  their  nation,  and  shall  alone  take  cognizance  of  all  dif- 
ferences which  may  arise,  either  at  sea  or  in  port,  between  the 
captains,  officers  and  crews,  without  exception,  particularly  with 
reference  to  the  adjustment  of  wages  and  the  execution  of  con- 
tracts. The  local  authorities  shall  not  interfere  except  when 
the  disorder  that  has  arisen  is  of  such  a  nature  as  to  disturb  tran- 
quility  and  public  order  on  shore,  or  in  the  port."  This  provi- 
sion, it  was  held,  did  not  deprive  the  local  authorities  of  juris- 
diction of  a  homicide  which  had  been  committed  on  board  of  a 
Belgian  vessel  moored  to  the  dock  in  an  American  port,  where 
the  homicide  was  the  consequence  of  an  affray  between  two 
Belgians,  both  of  whom  belonged  to  the  crew  of  the  vessel,  not- 
withstanding that  it  occurred  below  deck  and  was  only  seen  by 
other  members  of  the  crew.48 

40  See  for  an  account  of  these  cases,  over     certain     crimes    committed    on 

Wheaton's  Elements  of  International  board  of  vessels  lying  in  a   domestic 

Law,  3d  ed.,  153;  1  Phillmore's  Inter-  port.   Ex    parte    Byers,  32  Fed.  408. 

national  Law,   3d   ed.,   484.  Only   in    cases     of    peculiar   urgency 

47  Mali   v.   Keeper   of  the   Common  should   a   person    held  in  custody  by 
Jail,  120  U.  S.  1,  7  Sup.  Ct.  Eep.  385,  state  authorities  be  discharged  by  a 
30  L.  ed.  565.  federal  judge  on  habeas  corpus  in  ad- 

48  Mali   v.   Keeper   of  the   Common  vance  of  proceedings  in  state  courts  to 
Jail,  120  U.  S.  1,  7  Sup.  Ct.  Rep.  385,  determine  the  validity  of  the  arrest: 
30  L.  ed.  565.     State  and  federal  au-  Whitten  v.  Tomlinson,  160  U.  S.  242, 
thorities  have  concurrent  jurisdiction  16  Sup.  Ct.  Eep.  301,  40  L.  ed.    412, 


§  131]  CONSTRUCTION  OF  TREATIES,  ETC.  124 

§  131.  Most  favored  nation  clause. — Treaties  generally,  if  not 
universally,  contain  a  clause  that  the  subjects  of  each  nation  shall 
enjoy  in  the  territory  of  the  other  all  the  rights,  privileges  and 
immunities  of  the  subjects  of  the  most  favored  nation.  While  the 
language  employed  is  not  always  the  same,  substantially,  the  ob- 
ject to  be  attained  is  to  place  all  nations  on  an  equality.  This 
clause,  and  the  rights  claimed  under  it,  have  frequently  formed 
the  subject  of  diplomatic  controversy.  In  1817  Mr.  Adams  said 
that  one  nation  should  not  enjoy  as  a  gift  that  which  is  conceded 
to  other  nations  for  a  full  equivalent.49 

Where  a  claim  was  made  by  the  Austrian  charge  d'affaires  for 
the  benefit  of  the  stipulation  in  the  treaties  between  the  United 
States  with  Russia  and  certain  other  countries,  conferring  upon 
consuls  the  power  to  hear  disputes  between  the  masters  and  crews 
of  vessels,  the  Department  of  State  responded:  " Seeing  that 
the  right  now  under  consideration,  where  it  can  be  claimed  under 
a  treaty  wherein  it  is  expressly  conferred,  is,  in  every  such  in- 
stance, given  in  exchange  for  the  very  same  right  conferred  in 
terms  equally  express  upon  the  consuls  of  the  United  States,  it 
cannot  be  expected  that  it  will  be  considered  as  established  by 
the  operation  of  a  general  provision,  which,  if  it  were  allowed 
so  to  operate,  would  destroy  all  reciprocity  in  this  regard,  leav- 
ing the  United  States  without  that  equivalent  in  favor  of  their 
consuls,  which  is  the  consideration  received  by  them  for  the 
grant  of  this  right  wherever  expressly  granted."50 

A  Danish  ship  is  not  entitled,  under  the  most  favored  nation 
clause  in  the  treaty  with  Denmark,  to  claim  exemption  from  the 
head  money  exacted  for  immigrants  under  an  act  of  Congress.51 
Nor  is  sugar  imported  from  the  dominions  of  Denmark  entitled 
to  exemption  from  duty  because  sugar  imported  from  the 
Hawaiian  Islands  is  so  exempted,  as  such  exemption  was  made 
in  consideration  of  reciprocal  concessions.52 

49  Mr.  Adams,    Secretary  of  State,  52  Bartram  v.  Eobertson,  122  U.  S. 
December  23,  1817,  Am.  State  Papers,  116,  7  Sup.  Ct.  Eep.  1115,  30  L.  ed. 
For.  Eel.,  V,  152.  1118.       Mr.     Frelinghuysen     said    in 

50  Mr.     Buchanan,       Secretary     of  1884   in  a   note   to   Mr.   Eomero,   the 
State,  to  the  Chev.   Hiilsemann,  May  Mexican  Minister:  "  While  this  gov- 
18,     1846,     MS.     Notes     to     German  ernment    cannot    agree    with    that    of 
States,  VI,  130.  Mexico,  that  under    the  provisions  of 

51  Thingvalla  Line  v.  United  States,  the    most    favored   nation   clause    an- 
24  Ct.  of  Cl.  255.  other     nation     becomes     entitled     to 


125  RULES  OF  CONSTRUCTION  CODIFIED.  [§    132 

Stipulations  of  a  treaty  declaring  what  articles  shall  and  what 
shall  not  be  considered  as  contraband  do  not  come  within  the 
operation  of  the  most  favored  nation  clause.53  Engagements 
of  extradition  are  founded  on  particular  treaty  stipulations,  and 
are  not  to  be  inferred  from  a  favored  nation  clause.54  But 
the  most  favored  nation  clause  will  apply  to  a  stipulation  con- 
ferring upon  consular  officers  the  right  to  administer  on  the 
estates  of  their  deceased  countrymen.55 

A  pilotage  law  of  the  United  States  may  provide  for  the  ex- 
emption from  pilotage  of  American  coast  vessels  without  infring- 
ing a  treaty  stipulation  that  "no  higher  or  other  duties  or  charges 
shall  be  imposed  in  any  of  the  ports  of  the  United  States  on 
British  vessels  than  those  payable  in  the  same  ports  by  vessels  of 
the  United  States."56 

§  132.  Rules  of  construction  codified. — Mr.  J.  C.  Bancroft 
Davis,  in  1873,  codified,  for  the  use  of  the  State  Department  of  the 
United  States,  the  rules  governing  the  construction  of  treaties  as 
follows : 57  f 

"1.  A  treaty,  constitutionally  concluded  and  ratified,  abrogates 
all  State  laws  inconsistent  therewith.  It  is  the  supreme  law  of 
the  land,  subject  only  to  the  provisions  of  the  constitution.58 

"While,  however,  treaties  are  a  part  of  the  supreme  law  of  the 
land,  they  are  nevertheless  to  be  viewed  in  two  lights, — that  is 
to  say,  in  the  light  of  politics  and  in  the  light  of  juridical  law. 
The  decision  of  political  questions  is  pre-eminently  the  func- 

privileges    granted    by    a    reciprocity  B6  Olsen  v.  Smith,  195  TJ.  S.  332,  25 
treaty,  still  as  there  are  various  con-  Sup.  Ct.  Rep.  52,  49  L.  ed.  224. 
siderations  affecting   the   question   as  "  United  States  Treaties  and  Con- 
now    presented,  I  content  myself  with  ventions,     Introductory    notes,     1227- 
a   courteous  denial  that  the  most  fa-  1229   (1889). 

vored  nation  clause  applies  to  reciproc-  K  Citing    6     Op.    Atty.    Gen.    293 , 

ity    treaties,     without    now    entering  Cushing,    and    cases    cited    by    him; 

into  any  argument  on  the  subject."  United  States    v.    Schooner  Peggy,  1 

MS.  Notes  to  Mex.,  IX,  1.  Cranch,    103,    2   L.    ed.    49;    Ware   v. 

53  The   James  and  William,   37   Ct.  Hylton,    3    Dall.    199,    1   L.    ed.   568; 
of  Cl.  303.  Gordon's  Lessee  v.  Kerr,  1  Wash.  C. 

54  Cushing,  6  Op.  Atty.  Gen.  148.  C.   322,   Fed.   Gas.   No.   5611;   Lessee 

55  In   re   Fattosini's   Estate,   67   N.  of  Fisher  v.  Harnden,  1  Paine  C.  C. 
Y.  Supp.  1119,  33  Misc.  Eep.  18;  Wy-  55,  Fed.  Cas.  No.  4819;   8  Op.  Atty. 
man  v.  McEvoy,  191  Mass.  276,  114  Gen.  417,  Cushing;  13  Op.  Atty.  Gen. 
Am.  St.  Eep.  601,  77  N.  E.  379.  354,  Akerman. 


§    132]  CONSTRUCTION  OF  TREATIES,  ETC.  126 

tion  of  the  political  branch  of  the  government,  of  the  Executive 
or  of  Congress,  as  the  case  may  be;  and  when  a  political  ques- 
tion is  so  determined,  the  Courts  follow  that  determination. 
Such  was  the  decision  of  the  Supreme  Court  in  cases  involving 
boundary  and  other  questions,  under  the  treaty  of  1803  with 
France,  of  1819  with  Spain,  and  of  1848  with  Mexico.59 

"2.  A  treaty  is  binding  on  the  contracting  parties,  unless 
otherwise  provided,  from  the  day  of  its  date.  The  exchange  of 
ratifications  has,  in  such  case,  a  retroactive  effect,  confirming 
the  treaty  from  its  date.  But  a  different  rule  prevails  when  the 
treaty  operates  on  individual  rights.  The  principle  of  relation 
does  not  apply  to  rights  of  this  character,  which  were  vested  be- 
fore the  treaty  was  ratified ;  it  is  not  considered  as  concluded  until 
there  is  an  exchange  of  ratifications.60 

"3.  When  a  treaty  requires  a  series  of  legislative  enactments 
to  take  place  after  exchange  of  ratifications,  before  it  can  be- 
come operative,  it  will  take  effect  as  a  national  compact,  on  its 
being  proclaimed,  but  it  cannot  become  operative  as  to  the  par- 
ticular engagements  until  all  of  the  requisite  legislation  has  taken 
place.61 

"4.  Where  a  treaty  cannot  be  executed  without  the  aid  of  an 
Act  of  Congress,  it  is  the  duty  of  Congress  to  enact  such  law. 
Congress  has  never  failed  to  perform  that  duty.62 

' '  5.  But  when  it  can  be  executed  without  legislation,  the  Courts 
will  enforce  its  provisions.63 

59  Citing  Doe  et  al.  v.  Braden,  16  eo  Citing  Davis  v.  Parish  of  Con- 
How.  635,  14  L.  ed.  1090;  Foster  v.  cordia,  9  How.  280,  13  L.  ed.  138; 
Neilson,  2  Pet.  314,  7  L.  ed.  415 ;  The  Lessee  of  Hylton  v.  Brown,  1  Wash. 
Amiable  Isabella,  6  Wheat.  1,  5  L.  C.  C.  343,  Fed.  Cas.  No.  6982;  Haver 
ed.  191;  Grisar  v.  McDowell,  6  Wall.  v.  Yaker,  9  Wall.  32,  19  L.  ed.  571; 
363,  18  L.  ed.  863;  United  States  v.  United  States  v.  Arredondo,  6  Pet. 
Yorba,  1  Wall.  412,  17  L.  ed.  635 ;  691,  8  L.  ed.  547. 

United  States  v.  Pico,  23   How.  326,  G1  Citing     6     Op.    Atty.     Gen.    750, 

16    L.     ed.     464;     United     States     v.  Gushing,  and  also  chapter  10  of  vol. 

Lynde,  11  Wall.  633,  20  L.  ed.  230;  1,  Idem. 

Meade  v.  United  States,  9  Wall.  691,  62  Citing     6     Op.     Atty.    Gen.    296, 

19    L.     ed.     687;     United    States    v.  Gushing,   and   cases   cited. 

Reynes,   9  How.   127,    13  L.   ed.   74;  C3  Citing  Foster  v.  Neilson,  2  Pet. 

Davis  v.  Parish  of  Concordia,  9  How.  314,   7   L.  ed.   415;    United   States  v. 

280,  13  L.  ed.  138;  5  Op.  Atty.  Gen.  Arredondo,  6  Pet.  735,  8  L.  ed.  547. 
67,  Toucey. 


127  RULES   OP   CONSTRUCTION   CODIFIED.  [§    132 

"6.  Where  a  treaty  is  executed  in  two  languages,  each  the 
language  of  the  respective  contracting  parties,  each  part  of  the 
treaty  is  an  original,  and  it  must  be  assumed  that  each  is  in- 
tended to  convey  the  same  meaning  as  the  other.64 

"7.  Treaties  do  not  generally,  ipso  facto,  become  extinguished 
by  war.  Vested  rights  of  property  will  not  become  divested  in 
such  cases.65 

"8.  The  constitution  of  the  United  States  confers  absolutely 
upon  the  government  of  the  United  States  the  power  of  making 
war  and  of  making  treaties,  from  which  it  follows  that  that  gov- 
ernment possesses  the  power  of  acquiring  territory,  either  by  con- 
quest or  by  treaty.66 

"9.  Such  acquisition  does  not  impair  the  rights  of  private 
property  in  the  territory  acquired.67 

"10.  A  treaty  of  cession  is  a  deed  of  the  ceded  territory  by  the 
sovereign  grantor,  and  the  deed  is  to  receive  an  equitable  con- 
struction. The  obligation  of  the  new  power  to  protect  the  in- 
habitants in  the  enjoyment  of  their  property  is  but  the  asser- 
tion of  a  principle  of  natural  justice.68 

"11.  In  an  opinion  upon  the  legislation  to  carry  into  effect 
the  treaty  of  1819  with  Spain,  Attorney  General  Crittenden  held 
that  'An  act  of  Congress  is  as  much  a  supreme  law  of  the  land 
as  a  treaty.  They  are  placed  on  the  same  footing,  and  no 
superiority  is  to  be  given  to  the  one  over  the  other.  The  last 
expression  of  the  law  giving  power  must  prevail;  and  a  subse- 
quent act  must  prevail  and  have  effect,  though  inconsistent  with 
a  prior  act ;  so  must  an  act  of  Congress  have  effect,  though  incon- 
sistent with  a  prior  treaty. ' 69 

64  Citing     United     States     v.    Arre-  L.  ed.  938 ;  Delassus  v.  United  States, 
dondo,  6  Pet.  710,  8  L.  ed.  547.  9  Pet.  117,  9  L.  ed.   71;   Mitchell  v. 

65  Citing    Society    for    Propagation  United   States,   9   Pet.    711,   9  L.   ed. 
of  the  Gospel  v.  Town  of  New  Haven,  283 ;   Smith  v.  United  States,  10  Pet. 
8  Wheat.  464,  5  L.  ed.  662;   Carneal  326,  9  L.  ed.  442. 

v.  Ban,  10  Wheat.  182,  6  L.  ed.  297.  69  5   Op.    Atty.    Gen.  345,    Critten- 

66  Citing  Am.  Ins.  Co.  v.  366  Bales  den;     but     see     opinions    of    Justice 
of  Cotton   (Canter),  1  Pet.  542,  7  L.  Chase,  Ware  v.   Hylton,   3  Dall.   236, 
ed.   243.  5  L.  ed.  568,  and  of  Marshall,  Chief 

67  Citing  United  States  v.  Morano,  Justice,  United  States  v.  The  Peggy, 
1  Wall.  400,  17  L.  ed.  633.  1  Cranch,  109,  2  L.  ed.  49,  each  pro- 

68  Citing    United     States     v.    Arre-  nouncing  the  opinions  of  the  supreme 
dondo,  6  Pet.  710,  8  L.  ed.  547;  Sou-  court. 

lard  v.  United  States,  4  Pet.   511,   7 


§  133]  CONSTRUCTION  OF  TREATIES,  ETC.  128 

"12.  Interest,  according  to  the  usage  of  nations,  is  a  necessary 
part  of  a  just  national  natural  indemnification."70 

§  133.  Extent  of  treaty-making  power. — The  question  of  the 
extent  of  the  treaty-making  power  of  the  United  States  is  an 
academic  one.  No  treaty  ever  made  has  been  declared  to  con- 
flict with  the  Constitution.  In  the  constitutional  convention  the 
question  was  not  discussed,  and  the  only  point  mooted  was  as  to 
the  placing  of  the  power.  When  the  Constitution  came  up  for 
ratification,  it  was  freely  asserted  by  its  opponents  that  the 
treaty-making  power  was  unlimited.  In  answer  to  this  objec- 
tion Mr.  Madison  said:  "As  to  its  extent,  perhaps  it  will  be 
satisfactory  to  the  committee  that  the  power  is  precisely  in  the 
new  Constitution  as  it  is  in  the  Confederation.  In  the  existing 
confederacy  Congress  is  authorized  indefinitely  to  make  treaties. 
Many  of  the  states  have  recognized  the  treaties  of  Congress  to 
be  the  supreme  law  of  the  land.  Acts  have  passed  within  a  year 
declaring  this  to  be  the  case.  I  have  seen  many  of  them.  Does 
it  follow  because  the  power  is  given  to  Congress  that  it  is  abso- 
lute and  unlimited  ?  I  do  not  conceive  that  power  is  given  to  the 
President  and  Senate  to  dismember  the  empire  or  to  alienate  any 
great  essential  right.  I  do  not  think  the  whole  legislative  au- 
thority have  this  power.  The  exercise  of  the  power  must  be 
consistent  with  the  object  of  the  delegation.  One  objection 
against  the  amendment  proposed  is  this,  that  by  implication  it 
would  give  power  to  the  legislative  authority  to  dismember  the 
empire,  a  power  that  ought  not  to  be  given  but  by  the  necessity 
that  would  force  assent  from  every  man.  I  think  it  rests  on  the 
safest  foundations  as  it  is.  The  object  of  treaties  is  the  regula- 
tion of  intercourse  with  foreign  nations  and  is  external.  I  do  not 
think  it  possible  to  enumerate  all  the  cases  in  which  such  external 
regulations  would  be  necessary.  Would  it  be  right  to  define  all 
the  cases  in  which  Congress  could  exercise  this  authority?  The 
definition  might  and  probably  would  be  defective.  They  might 
be  restrained  by  such  a  definition  from  exercising  the  authority 
where  it  could  be  essential  to  the  interest  and  safety  of  the  com- 

70  1    Op.    Atty.    Gen.    28,   Wirt;    5       eva    Award,    4     Papers    Eelating     to 
Op.  Atty.  Gen.  550,  Crittenden;  Gen-       Washington,   53. 


129  GENERAL  TERMS  USED.  [§  134 

munity.     It  is  most  safe,  therefore,  to  leave  it  to  be  exercised  as 
contingencies  may  arise."71 

§  134.  General  terms  used. — The  Constitution  uses  general 
terms  in  speaking  of  treaties.  In  his  lectures  on  the  Constitu- 
tional Jurisprudence  of  the  United  States  Mr.  Duer  states: 
"More  general  and  extensive  terms,  also,  are  used  in  vesting 
the  power  with  respect  to  treaties,  than  in  conferring  that  rela- 
tive to  laws ;  and,  while  the  latter  is  laid  under  several  restrictions, 
there  are  none  imposed  on  the  exercise  of  the  former,  notwith- 
standing it  is  committed  to  the  President  and  Senate,  in  exclu- 
sion of  the  House  of  Representatives,  and  is  executed  through 
the  instrumentality  of  agents  delegated  for  the  purpose.  And 
although  the  President  and  Senate  are  thus  invested  with  this 
high  and  exclusive  control  over  all  those  subjects  of  negotiation 
with  foreign  powers,  which,  in  their  consequences,  may  affect  im- 
portant domestic  interests;  yet  it  would  have  been  impossible  to 
have  denned  a  power  of  this  nature,  and,  therefore,  general 
terms  only  were  used.  These  general  expressions,  however,  ought 
strictly  to  be  confined  to  their  legitimate  signification;  and  in 
order  to  ascertain  whether  the  execution  of  the  treaty-making 
power  can  be  supported  in  any  given  case,  those  principles  of  the 
Constitution,  from  which  the  power  proceeds,  should  carefully  be 

71  3  Elliott 's  Debates,  514.     It  was  are    there    any    constitutional    bounds 

said  by  Attorney  General  Wirt :   ' t  The  set    to  those    who    shall  make  them, 

people  seemed  to  have    contemplated  The  president  and  two  thirds  of  the 

the  National  Government  as  the  sole  senate    will    be    empowered    to    make 

organ  of  intercourse  with  foreign  na-  treaties   indefinitely,    and  when   these 

tions.     It    ought    to    be    armed    with  treaties  shall  be  made,  they  will  also 

power  to  satisfy  the  fulfillment  of  all  abolish   all  laws   and    state    constitu- 

moral    obligations,     perfect    and   im-  tions   incompatible    with    them.     This 

perfect,  which  the  law  devolves  upon  power  in  the  president  and  senate  is 

us  as   a  nation. ' '     1   Op.   Atty.   Gen.  absolute,     and     the     judges     will    be 

392.     Eichard  Henry  Lee,  who  strenu-  bound   to    allow   full    force    to    what- 

ously   opposed    the    adoption   of   the  ever  rule,  article  or  thing  the  presi- 

Constitution,    speaking   of   the   clause  dent    and    senate    shall    establish    by 

making   treaties   the   supreme   law   of  treaty,    whether    it    is    practicable    to 

the  land,  said :  ' '  By  the  article  before  set    any   bounds   to    those   who   make 

recited,  treaties  also  made  under    the  treaties,  I  am  not  able  to  say;  if  not, 

authority  of  the  United  States,  shall  it  proves  that  this  power  ought  to  be 

be  the   supreme   law.     It  is  not   said  more   safety  lodged."     Ford's   Pam- 

that  these   treaties   shall  be   made   in  phlets  on  the  Constitution,  311. 
pursuance     of     the     constitution — nor 
Treaties — 9 


§  134] 


CONSTRUCTION  OF  TREATIES,  ETC. 


130 


applied  to  it.  The  power  must,  indeed,  be  construed  in  subordina- 
tion to  the  Constitution;  and  however,  in  its  operation,  it  may 
qualify,  it  cann/t  supersede  or  interfere  with,  any  other  of  its 
fundamental  provisions,  nor  can  it  ever  be  so  interpreted  as  to 
destroy  other  powers  granted  by  that  instrument.  A  treaty  to 
change  the  organization  of  the  Government,  or  annihilate  its 
sovereignty,  or  overturn  its  Republican  form,  or  to  deprive  it  of 
any  of  its  constitutional  powers,  would  be  void ;  because  it  would 
defeat  the  will  of  the  people,  which  it  was  designed  to  fulfill."72 


72  Lectures  on  the  Constitutional 
Jurisprudence  of  the  United  States, 
2d  ed.,  228. 

Judge  Story,  speaking  of  the  con- 
struction that  should  be  placed  upon 
general  terms  used  in  the  Constitu- 
tion, says:  " Where  the  power  is 
granted  in  general  terms,  the  power 
is  to  be  construed,  as  co-extensive 
with  the  terms,  unless  some  clear  re- 
striction upon  it  is  deducible  from  the 
context.  We  do  not  mean  to  assert, 
that  it  is  necessary,  that  such  restric- 
tion should  be  expressly  found  in  the 
context.  It  will  be  sufficient,  if  it 
arise  by  necessary  implication.  But 
it  is  not  sufficient  to  show  that  there 
was,  or  might  have  been,  a  sound  or 
probable  motive  to  restrict  it.  A  re- 
striction founded  on  conjecture  is 
wholly  inadmissible.  The  reason  is 
obvious;  the  test  was  adopted  by  the 
people  in  its  obvious  and  general 
sense.  We  have  no  means  of  knowing, 
that  any  particular  gloss,  short  of  this 
sense,  was  either  contemplated,  or  ap- 
proved by  the  people ;  and  such  a  gloss 
might,  though  satisfactory  in  one 
state,  have  been  the  very  ground  of 
objection  in  another.  It  might  have 
formed  a  motive  to  reject  it  in  one, 
and  to  adopt  it  in  another.  The 
sense  of  a  part  of  the  people  has  no 
title  to  be  deemed  the  sense  of  the 
whole.  Motives  of  state'  policy,  or 
state  interest,  may  properly  have  in- 


fluence in  the  question  of  ratifying 
it;  but  the  constitution  itself  must 
be  expounded,  as  it  stands;  and  not 
as  that  policy,  or  that  interest  may 
seem  now  to  dictate.  We  are  to  con- 
strue, and  not  to  frame  the  instru- 
ment. 

"A  power,  given  in  general  terms, 
is  not  to  be  restricted  to  particular 
cases,  merely  because  it  may  be  sus- 
ceptible of  abuse,  and,  if  abused,  may 
lead  to  mischievous  consequences. 
This  argument  is  often  used  in  pub- 
lic debate;  and  in  its  common  aspect 
addressed  itself  so  much  to  popular 
fears  and  prejudices,  that  it  insensi- 
bly acquires  a  weight  in  the  public 
mind,  to  which  it  is  nowise  entitled. 
The  argument  ab  inconvenienti  is 
sufficiently  open  to  question,  from  the 
laxity  of  application,  as  well  as  of 
opinion,  to  which  it  leads.  But  the 
argument  from  a  possible  abuse  of  a 
power  against  its  existence  or  use,  is, 
in  its  nature,  not  only  perilous,  but  in 
respect  to  governments,  would  shake 
their  very  foundation.  Every  form 
of  government  unavoidably  includes  a 
grant  of  some  discretionary  powers. 
It  would  be  wholly  imbecile  without 
them.  It  is  impossible  to  foresee  all 
the  exigencies,  which  may  arise  in  the 
progress  of  events,  connected  with  the 
rights,  duties,  and  operations  of  a 
government.  If  they  could  be  fore- 
seen, it  would  be  impossible  ab  ante 


131 


COMMENTS. 


[§§  135,  136 


§  135.  Comments. — While  general  terms  are  used  in  the  Con- 
stitution in  conferring  the  treaty-making  power,  and  no  express 
restrictions  are  placed  upon  its  exercise,  it  is  recognized  that  re- 
strictions upon  the  power  may  be  necessarily  implied;  but  such 
restrictions  must  not  rest  on  conjecture.  They  cannot  be  implied 
because  there  might  have  been  a  sound  motive  for  such  restric- 
tions, but  the  Constitution  must  be  construed  by  its  own  lan- 
guage. The  power  of  taxation  may  also  be  an  unlimited  power, 
but  its  existence  cannot  be  denied  or  its  operation  limited,  be- 
cause it  might  be  employed  to  such  an  extent  as  virtually  to  pro- 
duce confiscation.  Likewise  it  is  no  argument  against  the  treaty- 
making  power,  conferred  in  general  terms,  that  it  might  be  ex- 
ercised imprudently  or  so  as  to  produce  mischief. 

§  136.  Chancellor  Kent's  views. — Chancellor  Kent  declared 
that  treaties  of  peace  are  obligatory  upon  the  whole  nation. 

"The  department  of  the  government  that  is  entrusted  by  the 
Constitution  with  the  treaty-making  power  is  competent  to  bind 


to  provide  for  them.  The  .  means 
must  be  subject  to  perpetual  modifi- 
cation and  change;  they  must  be 
adapted  to  the  existing  manners, 
habits,  and  institutions  of  society, 
which  are  never  stationary;  to  the 
pressure  of  dangers,  or  necessities;  to 
the  ends  in  view;  to  general  and  per- 
manent operations,  as  well  as  to  fugi- 
tive and  extraordinary  emergencies. 
In  short,  if  the  whole  society  is  not  to 
be  revolutionized  at  every  critical 
period,  and  remodelled  in  every  gen- 
eration, there  must  be  left  to  those, 
who  administer  the  government,  a 
very  large  mass  of  discretionary 
powers,  capable  of  greater  or  less 
actual  expansion  according  to  circum- 
stances, and  sufficiently  flexible  not  to 
involve  the  nation  in  utter  destruction 
from  the  rigid  limitations  imposed 
upon  it  by  an  improvident  jealousy. 
Every  power,  however  limited,  as  well 
as  broad,  is  in  its  own  nature  sus- 
ceptible of  abuse.  No  constitution 


can  provide  perfect  guards  against  it. 
Confidence  must  be  reposed  some- 
where ;  and  in  free  governments,  the 
ordinary  securities  against  abuse  are 
found  in  the  responsibility  of  rulers 
to  the  people,  and  in  the  just  exercise 
of  their  elective  franchise;  and  ulti- 
mately in  the  sovereign  power  of 
change  belonging  to  them,  in  cases  re- 
quiring extraordinary  remedies.  Few 
cases  are  to  be  supposed,  in  which  a 
power,  however,  general,  will  be  ex- 
erted for  the  permanent  oppression 
of  the  people.  And  yet,  cases  may 
easily  be  put,  in  which  a  limitation 
upon  such  a  power  might  be  found  in 
practice  to  work  mischief;  to  incite 
foreign  aggression;  or  encourage  do- 
mestic disorder.  The  power  of  taxa- 
tion, for  instance,  may  be  carried  to  a 
ruinous  excess;  and  yet,  a  limitation 
upon  that  power  might,  in  a  given 
case,  involve  the  destruction  of  the 
independence  of  the  country."  1 
Story  on  Constitution,  sees.  424,  425. 


§  137]  CONSTRUCTION  OP  TREATIES,  ETC.  132 

the  national  faith  in  its  discretion,  for  the  power  to  make  treaties 
of  peace  must  be  co-extensive  with  all  the  exigencies  of  the 
nation,  and  necessarily  involves  in  it  that  portion  of  the  national 
sovereignty  which  has  the  exclusive  direction  of  diplomatic  nego- 
tiations and  contracts  with  foreign  powers.  All  treaties  made  by 
that  power  become  of  absolute  efficacy  because  they  are  the  su- 
preme law  of  the  land.  There  can  be  no  doubt  that  the  power 
competent  to  bind  the  nation  by  treaty  may  alienate  the  public 
domain  and  property  by  treaty.  If  a  nation  has  conferred  upon 
its  executive  department  without  reserve  the  right  of  treating 
and  contracting  with  other  States,  it  is  considered  as  having 
invested  it  with  all  the  power  necessary  to  make  a  valid  treaty. 
That  department  is  the  organ  of  the  nation,  and  alienations  by  it 
are  valid  because  they  are  done  by  the  deputed  will  of  the  nation. 
The  fundamental  laws  of  a  State  may  withhold  from  the  execu- 
tive department  the  power  of  transferring  what  belongs  to  the 
States,  but  if  there  be  no  express  provision  of  that  kind,  the  in- 
ference is  that  it  has  confided  to  the  department  charged  with 
the  power  of  making  treaties  a  discretion  commensurate  with  all 
the  great  interests  and  wants  and  necessities  of  the  nation. ' ' 73 

Mr.  Cooley  says:  "The  President  has  power  by  and  with  the 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of 
the  Senators  concur.  The  Constitution  imposes  no  restriction 
upon  this  power,  but  it  is  subject  to  the  implied  restriction  that 
nothing  can  be  done  under  it  which  changes  the  Constitution  of 
the  country  or  robs  a  Department  of  the  Government  or  any  of 
the  States  of  its  constitutional  authority. ' ' 74 

§  137.  Other  expressions. — William  Pinkney,  in  a  speech  in 
the  House  of  Representatives,  speaking  of  the  power  conferred 
to  enter  into  treaties  with  foreign  powers,  said:  "Upon  the  ex- 
tent of  the  power  or  the  subjects  upon  which  it  may  not,  there  is 
as  little  room  for  controversy.  The  power  is  to  make  treaties. 
The  word  'treaties'  is  nomen  generalissimum  and  will  compre- 
hend commercial  treaties,  unless  there  be  a  limit  upon  it  by  which 
they  are  executed.  It  is  the  appellative,  which  will  take  in  the 

73  1  Kent's  Commentaries,  161,  162,  Constitutional    Jurisprudence    of    the 

cited  with  approval  in  Holden  v.  Joy,  United  States,  p.  138. 

17  Wall.  211,  21  L.  ed.  523.     To  the  74  Constitutional    Law,    3d    ed.,    p. 

same   effect,   see   Duer's   Outlines   of  117. 


133  TREATY-MAKING  POWER  AND  LEGISLATIVE  POWER.  [  §    138 

whole  species,  if  there  be  nothing  to  limit  its  scope.  There 
is  no  such  limit.  There  is  not  a  syllable  in  the  context  of  the 
clause  to  restrict  the  natural  import  of  its  phraseology.  The 
power  is  left  to  the  force  of  the  generic  term  and  is  therefore 
as  wide  as  a  treaty-making  power  can  be.  It  embraces  all  the 
varieties  of  treaties  which  it  could  be  supposed  this  government 
could  find  it  necessary  or  proper  to  make,  or  it  embraces  none. 
It  covers  the  whole  treaty-making  ground  which  this  govern- 
ment could  be  expected  to  occupy,  or  not  an  inch  of  it. 

"It  is  a  just  presumption,  that  it  was  designed  to  be  coextensive 
with  all  the  exigencies  of  our  affairs.  Usage  sanctions  that  pre- 
sumption— expediency  does  the  same.  The  omission  of  any  ex- 
ception to  the  power,  the  omission  of  the  designation  of  a  mode 
by  which  a  treaty  not  intended  to  be  included  within  it  might 
otherwise  be  made,  confirms  it."75 

§  138.  Difference  between  delegation  of  treaty-making  power 
and  legislative  power. — Mr.  Calhoun  declared  that  there  was  a 
striking  difference  between  the  manner  of  conferring  the  dele- 
gation of  the  treaty-making  and  that  of  the  law-making  power. 
The  legislative  powers  vested  in  Congress  are  enumerated  and 
specified,  while  the  language  relative  to  the  treaty-making  power 
is  general.  "The  reason,"  he  says,  "is  to  be  found  in  the  fact 
that  the  treaty-making  power  is  vested  exclusively  in  the  gov- 
ernment of  the  United  States;  and,  therefore,  nothing  more  was 
necessar}^  in  delegating  it  than  to  specify,  as  is  done,  the  por- 
tion or  department  of  the  government  in  which  it  is  vested. 
It  was,  then,  not  only  necessary,  but  it  would  have  been  absurd 
to  enumerate,  specially,  the  powers  embraced  in  the  grant. 
Very  different  is  the  case  in  regard  to  legislative  powers.  They 
are  divided  between  the  Federal  Government  and  State  Gov- 
ernments; which  made  it  absolutely  necessary,  in  order  to  draw 
the  line  between  the  delegated  and  reserved  powers,  that  the 
one  or  the  other  should  be  carefully  enumerated  and  specified; 
and,  as  the  former  was  intended  to  be  but  supplemental  to  the 
latter,  and  to  embrace  the  comparatively  few  powers  which 

75  Wheaton's  Life  of  Pinkney,  523,       Hauenstein  v.  Lynham,  100  U.  S.  483, 
525,    526,    cited    approvingly    by    su-       25  L.  ed.  628. 
preme     court    of    United     States    in 


§  138]  CONSTRUCTION  OF  TREATIES,  ETC.  134 

could  not  be  either  exercised  at  all,  or,  if  at  all,  could  not  be 
so  well  and  safely  exercised  by  the  separate  governments  of  the 
several  States,  it  was  proper  that  the  former,  and  not  the  latter, 
should  be  enumerated  and  specified.  But,  although  the  treaty- 
making  power  is  exclusively  vested  and  without  enumeration  01 
specification  in  the  government  of  the  United  States,  it  is  never- 
theless subject  to  several  important  limitations. 

"It  is,  in  the  first  place,  strictly  limited  to  questions  inter  olios: 
that  is,  to  questions  between  us  and  foreign  powers  which  re- 
quire negotiations  to  adjust  them.  All  such  clearly  appertain 
to  it.  But  to  extend  the  power  beyond  these,  be  the  pretext  what 
it  may,  would  be  to  extend  it  beyond  its  allotted  sphere;  and, 
thus,  a  palpable  violation  of  the  Constitution.  It  is,  in  the  next 
place,  limited  by  all  the  provisions  of  the  Constitution  which  in- 
hibit certain  acts  from  being  done  by  the  government,  or  any 
of  its  departments; — of  which  description  there  are  many.  It  is 
also  limited  by  such  provisions  of  the  Constitution  as  direct  acts 
to  be  done  in  a  particular  way,  and  which  prohibit  the  contrary; 
of  which  a  striking  example  is  to  be  found  in  that  which  declares 
that,  'no  money  shall  be  drawn  from  the  Treasury  but  in  conse- 
quence of  appropriations  to  be  made  by  law.'  This  not  only  im- 
poses an  important  restriction  on  the  power,  but  gives  to  Congress, 
as  the  law-making  power,  and  to  the  House  of  Representatives 
as  a  portion  of  the  Congress,  the  right  to  withhold  the  appro- 
priations; and,  thereby,  an  important  control  over  the  treaty- 
making  power,  whenever  money  is  required  to  carry  a  treaty 
into  effect; — which  is  usually  the  case,  especially  in  reference  to 
those  of  much  importance.  There  still  remains  another,  and  more 
important,  limitation;  but  of  a  more  general  and  indefinite  char- 
acter. It  can  enter  into  no  stipulation  calculated  to  change  the 
character  of  the  government;  or  to  do  that  which  can  only  be 
done  by  the  Constitution-making  power;  or  which  is  inconsistent 
with  the  nature  and  structure  of  the  government,  or  the  objects 
for  which  it  was  formed.  Among  which,  it  seems  to  be  settled, 
that  it  cannot  change  or  alter  the  boundary  of  a  State,  or  cede 
any  portion  of  its  territory,  without  its  consent.  Within  these 
limits,  all  questions  which  may  arise  between  us  and  other  powers, 
be  the  subject  matter  what  it  may,  fall  within  the  limits  of  the 
treaty-making  power,  and  may  be  adjusted  by  it. ' ' 76 

78  2  Calhoun's  Works,  132,  135. 


135  TREATIES  ARE  COMPACTS.  [§    138 

Mr.  Rawle,  after  declaring  that  the  nature  and  extent  of  the 
treaty-making  power  received  a  full  examination  in  the  state 
conventions,  says:  "The  most  general  terms  are  used  in  the  con- 
stitution. The  powers  of  congress  in  respect  to  making  laws 
we  shall  find  are  laid  under  several  restrictions.  There  are  none 
in  respect  to  treaties.  Although  the  acts  of  public  ministers, 
less  immediately  delegated  by  the  people  than  the  house  of 
representatives,  the  president  constitutionally  and  the  senate, 
both  constitutionally  and  practically,  two  removes  from  the 
people,  are  by  the  treaty-making  power  invested  with  the  high 
and  sole  control  over  all  those  subjects  which  properly  arise 
from  intercourse  with  foreign  nations,  and  may  eventually  effect 
important  interests  home.  To  define  them  in  the  Constitution 
would  have  been  impossible,  and  therefore  a  general  term  could 
alone  be  made  use  of,  which  is,  however,  to  be  scrupulously  con- 
fined to  its  legitimate  interpretation.  Whatever  is  wanting  in 
an  authority  expressed  must  be  sought  for  in  principle,  and  to 
ascertain  whether  the  execution  of  the  treaty-making  power  can 
be  supported,  we  must  carefully  apply  to  it  the  principles  of  the 
Constitution  from  which  alone  the  power  proceeds. 

"In  its  general  sense,  we  can  be  at  no  loss  to  understand  the 
meaning  of  the  word  treaty.  It  is  a  compact  entered  into  with  a 
foreign  power,  and  it  extends  to  all  those  matters  which  are  gen- 
erally the  subjects  of  compact  between  independent  nations. 
Such  subjects  are  peace,  alliance,  commerce,  neutrality,  and 
others  of  a  similar  nature.  To  make  treaties  is  an  essential  at- 
tribute of  a  nation.  One  which  disabled  itself  from  the  power  of 
making,  and  the  capacity  of  observing  and  enforcing  them  when 
made,  would  exclude  itself  from  the  international  equality  which 
its  own  interests  require  it  to  preserve,  and  thus  in  many  re- 
spects commit  an  injury  on  itself.  In  modern  times  and  among 
civilized  nations,  we  have  no  instances  of  such  absurdity.  The 
power  must  then  reside  somewhere.  Under  the  articles  of  con- 
federation  it  was  given  with  some  restrictions,  proceeding  from 
the  nature  of  that  imperfect  compact,  to  congress,  which  then 
nominally  exercised  both  the  legislative  and  executive  powers 
of  general  government.  In  our  present  Constitution  no  limita- 
tions were  held  necessary.  The,  only  question  was  where  to  de- 
posit it.  Now  this  must  be  either  in  congress  generally,  in  the 


§  139]  CONSTRUCTION  OF  TREATIES,  ETC.  136 

two  houses  exclusive  of  the  president,  in  the  president  conjunctly 
with  them  or  one  of  them,  or  in  the  president  alone. "  77 

§  139.  Expressions  of  courts. — In  many  of  the  opinions  of 
courts  in  cases  in  which  treaties  have  come  before  them  for  con- 
struction, the  broad  extent  of  the  treaty-making  power  is  clearly 
recognized.  For  instance,  Mr.  Justice  Clifford  observed:  "Ex- 
press power  is  given  to  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided  two-thirds 
of  the  Senators  present  concur,  and  inasmuch  as  the  power  is 
given  in  general  terms,  without  any  description  of  the  objects 
intended  to  be  embraced  within  its  scope,  it  must  be  assumed 
that  the  framers  of  the  Constitution  intended  that  it  should 
extend  to  those  objects  which  in  the  intercourse  of  nations  had 
usually  been  regarded  as  the  proper  subjects  of  negotiation  and 
treaty,  if  not  inconsistent  with  the  nature  of  our  government, 
and  the  relation  between  the  States  and  the  United  States. ' ' 78 

Mr.  Justice  Miller  said:  "A  treaty  is  primarily  a  compact  be- 
tween independent  nations.  It  depends  for  the  enforcement  of 
its  provisions  on  the  interest  and  the  honor  of  the  governments 
which  are  parties  to  it.  If  these  fail,  its  infraction  becomes  the 
subject  of  international  negotiations  and  reclamations,  so  far 
as  the  injured  party  chooses  to  seek  redress,  which  may  in  the 
end  be  enforced  by  actual  war.  It  is  obvious  that  with  all  this, 
the  judicial  courts  have  nothing  to  do  and  can  give  no  redress. 
But  a  treaty  may  also  contain  provisions  which  confer  certain 
rights  upon  the  citizens  or  subjects  of  one  of  the  nations  residing 
in  the  territorial  limits  of  the  other,  which  partake  of  the  nature 
of  municipal  law,  and  which  are  capable  of  enforcement  as  be- 
tween private  parties  in  the  courts  of  the  country. ' '  79 

"The  power  to  make  treaties  with  the  Indian  tribes  is,  as  we 
have  seen,  coextensive  with  the  power  to  make  treaties  with 
foreign  nations.  And  it  cannot  be  doubted  that  the  treaty-mak- 

77  Eawle's  A  View  of  the  Consti-       in  Holmes  v.  Jennison,  14  Pet.  569, 
tution  of  the  United  States,  1st  ed.,       10  L.  ed.  594. 

p.  57,  2d  ed.,  p.  64.  79  Edye   v.    Kobertson,    112    U.    S. 

78  Holden  v.  Joy,  17  Wall.  211,  21       580,  5   Sup.   Ct.  Eep.  247,  28  L.  ed. 
L.  ed.  534.     See,  to  same  effect,  the       804. 

language  of  Mr.  Chief  Justice  Taney 


137  EXTENDS  TO  ALL  PROPER   SUBJECTS  OF  NEGOTIATION.       [§    140 

ing  power  is  ample  to   cover  all  usual  subjects  of  diplomacy 
with  different  powers. ' '  80 


§  140.  Extends  to  all  proper  subjects  of  negotiation. — "That 
the  treaty  power  of  the  United  States  extends  to  all  proper  sub- 
jects of  negotiation  between  our  government  and  the  government 
of  other  nations  is  clear. ' ' 81  Similar  expressions  may  be  found 
in  many  cases  in  which,  while  the  treaty-making  power  has  never 
been  accurately  denned,  the  wide  field  that  it  covers  is  fully 
recognized.82 


80  United  States  v.  43  Gallons  of 
Whisky,  93  U.  S.  188,  23  L.  ed.  846. 

81  Geofroy  v.  Eiggs,  133  U.  S.  258, 
10  Sup.  Ct.  Rep.  295,  33  L.  ed.  642. 

82  "The     people     of     the     United 
States,    as    one    great    political    com- 
munity,   have    willed    that    a    certain 
portion   of  the  government,  including 
all  foreign  intercourse,  and  the  public 
relations  of  the  nations,  and  all  mat- 
ters of  a  general  and  national  char- 
acter, which  are  specified  in  the  Con- 
stitution, should  be  deposited  in  and 
exercised  by  a  national  government; 
and  that  all  matters  of  merely  local 
interest    should   be    deposited   in   and 
exercised  by  the  state  governments." 
Waite,    C.    J.,    dissenting.     Keith    v. 
Clark,  97  U.  S.  476,  24  L.  ed.  1071. 

' l  The  United  States  are  a  sover- 
eign and  independent  nation,  and  are 
vested  by  the  Constitution  with  the 
entire  control  of  international  rela- 
tions, and  with  all  the  powers  of 
government  necessary  to  maintain 
that  control  and  to  make  it  effective. 
The  only  government  of  this  country, 
which  other  nations  recognize  or  treat 
with,  is  the  government  of  the  Union; 
and  the  only  American  flag  known 
throughout  the  world  is  the  flag  of 
the  United  States."  Gray,  J.  Fong 
Yue  Ting  v.  United  States,  149  U.  S. 
711,  13  Sup.  Ct.  Eep.  1016,  37  L.  ed. 
905. 


"The  United  States  is  not  only  a 
government,  but  it  is  a  national  gov- 
ernment, and  the  only  government  in 
this  country  that  has  the  character  of 
nationality.  It  is  invested  with 
power  over  all  the  foreign  relations 
of  the  country,  war,  peace,  and  nego- 
tiations and  intercourse  with  other 
nations;  all  which  are  forbidden  to 
the  state  governments. ' '  Bradley,  J. 
Legal  Tender  Cases,  12  Wall.  555,  20 
L.  ed.  287. 

"While  under  our  Constitution  and 
form  of  government  the  great  mass 
of  local  matters  is  controlled  by  local 
authorities,  the  United  States,  in 
their  relation  to  foreign  countries 
and  their  subjects  or  citizens  are  one 
nation,  invested  with  powers  which 
belong  to  independent  nations,  the 
exercise  of  which  can  be  invoked  for 
the  maintenance  of  its  absolute  inde- 
pendence and  security  throughout  its 
entire  territory."  Field,  J.  The 
Chinese  Exclusion  Case,  130  U.  S.  604, 
9  Sup.  Ct.  Eep.  623,  32  L.  ed.  1068. 

"In  its  treaties  and  conventions 
with  foreign  nations  this  government 
is  a  unit. ' '  Brown,  J.  Downes  v. 
Bidwell,  182  U.  S.  263,  21  Sup.  Ct. 
Eep.  770,  45  L.  ed.  1097. 

"The  American  states,  as  well  as 
the  American  people,  have  believed 
a  close  and  firm  union  to  be  essential 
to  the  liberty  and  to  their  happiness. 


141] 


CONSTRUCTION    OF    TREATIES,    ETC. 


138 


§  141.  Comments. — By  the  Constitution,  the  United  States  is 
a  sovereign  and  independent  nation,  and  it  is  the  only  government 
recognized  by  the  Constitution  as  possessing  a  national  charac- 
ter, and  to  it  are  intrusted  all  the  powers  that  relate  to  inter- 
course with  other  nations.  It  is  one  nation,  and  in  all  treaties 
which  it  makes,  it  is  a  unit.  It  is  the  will  of  the  people  of  the 
United  States,  as  expressed  in  their  Constitution,  that  that  branch 
of  sovereignty  which  has  to  do  with  foreign  intercourse,  and  the 
relations  that  one  nation  bears  to  another,  by  treaty  or  interna- 
tional law,  should  be  vested  in  the  national  government.  It  is 
the  only  government  that  is  capable  of  managing  the  interests  of 
the  American  people,  in  foreign  relations,  while  to  the  state  gov- 
ernments are  left  all  matters  of  purely  local  interest.  The  na- 
tional government,  being  invested  with  the  powers  that  appertain 
to  independent  nations,  may,  in  dealing  with  foreign  nations,  ex- 
ercise such  powers  as  may  be  necessary  for  the  maintenance  of 
its  independence  and  security. 


They  have  been  taught  by  experience 
that  this  Union  cannot  exist  without 
a  government  for  the  whole;  and  they 
have  been  taught  by  the  same  experi- 
ence that  this  government  would  be  a 
mere  shadow  that  must  disappoint  all 
their  hopes,  unless  invested  with  large 
portions  of  that  sovereignty  which  be- 
longs to  independent  states.  Under 
the  influence  of  this  opinion,  and  thus 
instructed  by  experience,  the  Ameri- 
can people,  in  the  conventions  of 
their  respective  states,  adopt  the  pres- 
ent constitution." 

"That  the  United  States  form,  for 
many,  and  for  most  important  pur- 
poses, a  single  nation,  has  not  yet 
been  denied.  In  war,  we  are  one 
people.  In  making  peace,  we  are  one 
people.  In  all  commercial  regula- 
tions, we  are  one  and  the  same  people. 
In  many  other  respects,  the  American 
people  are  one;  and  the  government 
which  is  alone  capable  of  controlling 
and  managing  their  interests  in  all 
these  respects,  is  the  government  of 
the  Union.  It  is  their  government, 


and  in  that  character  they  have  no 
other. ' '  Marshall,  C.  J.  Cohen  v. 
Virginia,  6  Wheat.  380-413,  5  L.  ed. 
259. 

* '  The  treaty-making  power  vested 
in  our  government  extends  to  all 
proper  subjects  of  negotiation  with 
foreign  governments.  It  can,  equally 
with  any  of  the  former  or  present 
governments  of  Europe,  make  treaties 
providing  for  the  exercise  of  judicial 
authority  in  other  countries  by  its 
officers  appointed  to  reside  therein." 
Field,  J.  In  re  Eoss,  140  U.  S.  463, 
11  Sup.  Ct.  Eep.  897,  35  L.  ed.  581. 

1 '  The  subject  of  treaties  ....  is 
to  be  determined  by  the  law  of  na- 
tions." Iredell,  J.  Ware  v.  Hyl- 
ton,  3  Ball.  261,  1  L.  ed.  568. 

"One  of  the  ordinary  incidents  of 
a  treaty  is  the  cession  of  territory." 
Brown,  J.  De  Lima  v.  Bidwell,  182 
U.  S.  195,  21  Sup.  Ct.  Eep.  743,  45 
L.  ed.  1041. 

"By  the  stipulations  of  a  treaty  are 
to  be  understood  its  language  and  ap- 
parent intention  manifested  in  the 


139 


VIEWS    OF    MR.    BUTLER. 


[§  142 


§  142.  Views  of  Mr.  Butler.— Mr.  Butler,  who  has  written  a 
valuable  treatise  on  the  treaty-making  power  of  the  United 
States,  states  his  belief  to  be  that  the  government  of  the  United 
States  is  fully  endowed  with  all  the  essential  attributes  of  sov- 
ereignty, and  that  he  feels  justified  in  expressing  the  follow- 
ing opinion: 

"First:  That  the  treaty-making  power  of  the  United  States, 
as  vested  in  the  Central  Government,  is  derived  not  only  from 
the  powers  expressly  conferred  by  the  Constitution,  but  that  it  is 
also  possessed  by  that  Government  as  an  attribute  of  sovereignty, 
and  that  it  extends  to  every  subject  which  can  be  the  basis  of 
negotiation  and  contract  between  any  of  the  sovereign  powers  of 
the  world,  or  in  regard  to  which  the  several  States  of  the  Union 
themselves  could  have  negotiated  and  contracted  if  the  Consti- 
tution had  not  expressly  prohibited  the  States  from  exercising 
the  treaty-making  power  in  any  manner  whatever  and  vested  that 
power  exclusively  in,  and  expressly  delegated  it  to,  the  Federal 
Government. 


instrument,  with  a  reference  to  the 
contracting  parties,  the  subject-mat- 
ter, and  the  persons  on  whom  it  is  to 
operate. ' '  Baldwin,  J.  United 
States  v.  Arredondo,  6  Pet.  710,  8 
L.  ed.  547. 

"No  one  can  doubt  that  a  treaty 
may  stipulate  that  certain  acts  shall 
be  done  by  the  executive;  and  others 
by  the  judiciary."  Chase,  J.  Ware 
v.  Hylton,  3  Ball.  244,  1  L.  ed.  568. 

"I  admit  that  a  treaty,  when  exe- 
cuted pursuant  to  full  power,  is  valid 
and  obligatory,  in  the  point  of  moral 
obligation,  on  all,  as  well  as  on  the 
legislative,  executive,  and  judicial  de- 
partments (so  far  as  the  authority  of 
either  extends),  which  in  regard  to 
the  last,  must,  in  this  respect,  be  very 
limited,  as  on  every  individual  of  the 
nation,  unconnected  officially  with 
either;  because  it  is  a  promise  in 
effect  by  the  whole  nation  to  another 
nation,  and  if  not  in  fact  complied 
with,  unless  there  be  valid  reasons  for 


noncompliance,  the  public  faith  is 
violated."  Iredell,  J.  Ware  v.  Hyl- 
ton, 3  Dall.  272,  1  L.  ed.  568. 

1 '  This  court  is  bound  to  give  effect 
to  the  stipulations  of  a  treaty  in  the 
manner  and  to  the  extent  which  the 
parties  have  declared,  and  not  other- 
wise: We  are  not  at  liberty  to  dis- 
pense with  any  of  the  conditions  and 
requirements  of  the  treaty,  or  to  take 
away  any  qualification  or  integral 
part  of  any  stipulation,  upon  any 
notion  of  equity  or  general  conve- 
nience, or  substantial  justice.  The 
terms  which  the  parties  have  chosen 
to  fix,  the  forms  which  they  have  pre- 
scribed, and  the  circumstances  under 
which  they  are  to  have  operation,  rest 
in  the  exclusive  discretion  of  the  con- 
tracting parties,  and  whether  they  be- 
long to  the  essence  or  the  model  parts 
of  the  treaty,  equally  give  the  rule  to 
judicial  tribunals."  Story,  J.  The 
Amiable  Isabella,  6  Wheat.  72,  5  L.  ed. 
191. 


§  143]  CONSTRUCTION  OP  TREATIES,  ETC.  140 

"Second:  That  this  power  exists  in,  and  can  be  exercised  by, 
the  National  Government,  whenever  foreign  relations  of  any  kind 
are  established  with  any  other  sovereign  power,  in  regulating  by 
treaty  the  use  of  property  belonging  to  States  or  ttye  citizens 
thereof,  such  as  canals,  railroads,  fisheries,  public  lands,  mining 
claims,  etc. ;  in  regulating  the  descent  or  possession  of  property 
within  the  otherwise  exclusive  jurisdiction  of  States;  in  sur- 
rendering citizens  and  inhabitants  of  States  to  foreign  powers 
for  punishment  of  crimes  committed  outside  of  the  jurisdiction  of 
the  United  States  or  of  any  State  or  territory  thereof;  in  fact, 
that  the  power  of  the  United  States  to  enter  into  treaty  stipula- 
tions in  regard  to  all  matters,  which  can  properly  be  the  subject 
of  negotiation  between  sovereign  states,  is  practically  unlimited, 
and  that  in  no  case  is  the  sanction,  aid  or  consent  of  any  State 
necessary  to  validate  the  treaty  or  to  enforce  its  provisions. 

"Third:  That  the  power  to  legislate  in  regard  to  all  matters 
affected  by  treaty  stipulations  and  relations  is  co-extensive  with 
the  treaty-making  power,  and  that  acts  of  Congress  enforcing 
such  stipulations  which,  in  the  absence  of  treaty  stipulations, 
would  be  unconstitutional  as  infringing  upon  the  powers  reserved 
to  the  States,  are  constitutional,  and  can  be  enforced,  even  though 
they  may  conflict  with  State  laws  or  provisions  of  State  constitu- 
tions. 

"Fourth:  That  all  provisions  in  State  statutes  or  constitu- 
tions which  in  any  way  conflict  with  any  treaty  stipulations, 
whether  they  have  been  made  prior  or  subsequent  thereto,  must 
give  way  to  the  provisions  of  the  treaty,  or  act  of  Congress  based 
on  and  enforcing  the  same,  even  if  such  provisions  relate  to  mat- 
ters wholly  within  State  jurisdiction. ' '  83 

§  143.  Comments. — The  treaty-making  power  must  exist 
somewhere.  Power  is  divided  between  the  federal  and  state  gov- 
ernments, and  all  power  not  granted  is  reserved  to  the  people. 
The  United  States  is  a  nation,  and  the  only  sovereignty  that 
foreign  powers  can  recognize.  The  constitution  does  not  define 
nor  limit  the  kind  of  treaties  that  can  be  made.  The  treaty  power 
is  in  a  measure  incidental  to  the  war  power,  and  under  the  neces- 
sity for  national  preservation,  or  even  for  national  benefit,  many 
things  can  be  done  that  are  not  explicitly  enumerated  in  the 

83  1  Butler's  Treaty-making  Power    of  the  United  States,  p.  5,  sec.  3. 


141  PANAMA  CANAL  ZONE.  [§    144 

constitution.  But,  still,  with  all  that,  it  cannot  be  said  that  the 
treaty-making  power  is  unlimited.  What  the  limits  are,  no  one 
can  correctly  state,  and  it  is  possible  that  no  treaty  will  ever  be 
made  in  which  the  power  to  make  the  treaty  will  be  seriously 
questioned.  But  if  there  ever  appears  a  clear  case  in  which  a 
treaty  conflicts  with  the  Constitution,  then  either  the  Constitu- 
tion or  the  treaty  must  govern,  and  there  can  be  little  doubt  that 
in  such  a  case  the  treaty  would  yield  to  the  Constitution.  All 
that  can  be  safely  said  is  that  the  treaty  power  is  broad  and 
comprehensive,  and  extends  to  all  matters  of  governmental  con- 
cern that  do  not  conflict  with  the  Constitution,  which  after  all 
is  not  saying  much,  as  it  still  leaves  open  the  question  of  what 
is  a  conflict.  But,  happily,  the  question  has  never  arisen,  and  it 
is  doubtful  if  it  ever  will. 

§  144.  Panama  canal  zone. — A  suit  was  commenced  by  a 
citizen  of  Illinois  to  restrain  the  Secretary  of  the  Treasury  from 
paying  out  money  for  the  purchase  of  property  for  the  con- 
struction of  a  canal  at  Panama,  from  borrowing  money  on  the 
credit  of  the  United  States,  and  from  issuing  bonds  or  making 
any  payments  under  the  congressional  act  providing  for  the  ac- 
quisition of  the  property.  The  supreme  court  of  the  United 
States  said  there  were  many  objections  to  the  bill.  "Among 
them  are  these:  Does  plaintiff  show  sufficient  pecuniary  interest 
in  the  subject  matter?  Is  the  suit  not  really  one  against  the 
government,  which  has  not  consented  to  be  sued  ?  Is  it  any  more 
than  an  appeal  to  the  courts  for  an  exercise  of  governmental 
powers  which  belong  exclusively  to  Congress?"  The  court  said 
that  it  would  not  stop  to  consider  these  or  similar  objections, 
but  that  its  passing  of  them  in  silence  should  not  be  taken  as 
even  an  implied  ruling  against  their  sufficiency,  but  that  it  pre- 
ferred to  base  its  decision  on  the  general  scope  of  the  bill. 
The  contention  was  made  that  title  was  not  acquired  as  had  been 
provided  by  a  prior  act  of  Congress,  by  treaty  with  the  Republic 
of  Colombia.  The  Republic  of  Panama  seceding  from  the  Re- 
public of  Colombia  was  recognized  as  a  nation  by  the  President, 
and  a  treaty  with  it  ceding  the  canal  zone  was  properly  ratified. 
Several  acts  were  passed  by  Congress  based  upon  the  title  of  the 
United  States  which  it  had  acquired  by  a  treaty  with  the  Republic 
of  Panama.  The  court  held  that  a  subsequent  ratification  was 


§§145,    146]  CONSTRUCTION    OF    TREATIES,    ETC.  142 

equivalent  to  original  authority,  and  that  "It  is  too  late  in  the 
history  of  the  United  States  to  question  the  right  of  acquiring 
title  by  treaty."  The  title  of  the  United  States  was  not  in  any 
manner  affected  because  the  treaty  omitted  some  of  the  technical 
terms  used  in  ordinary  conveyances  of  real  estate,, nor  because 
it  failed  to  define  the  exact  boundary  of  the  canal  zone,  where 
the  description  was  sufficient  for  identification,  and  by  the  con- 
current action  of  the  two  nations  which  alone  were  interested, 
the  boundaries  had  been  practically  defined.84 

§  145.  Right  to  attend  public  schools. — What  rights  have 
alien  children  under  treaty  provisions  to  attend  the  public  schools 
of  a  state  and  what  power  have  the  state  or  municipal  authorities 
to  provide  separate  schools  for  the  children  of  any  particular 
nationality,  or  to  exclude  them  from  the  schools  altogether? 
These  questions  involve  to  the  fullest  degree  the  extent  of  the 
treaty-making  power  of  the  United  States  on  the»  one  hand  and 
the  police  power  or  powers  to  regulate  its  own  internal  affairs  by 
the  state  on  the  other.  This  question  recently  arose  in  California, 
and  became  the  subject  of  diplomatic  correspondence  and  negotia- 
tion between  the  Department  of  State  and  the  representatives  of 
the  Empire  of  Japan,  and  finally  resulted  in  the  United  States 
commencing  a  suit  in  equity  to  enforce  what  were  claimed  to  be 
rights  guaranteed  by  a  treaty. 

§  146.  Treaty  provisions. — The  treaty  of  November  22,  1894, 
between  the  United  States  and  Japan  provided,  in  the  first 
article : 

"The  citizens  or  subjects  of  each  of  the  two  High  Contracting 
Parties  shall  have  full  liberty  to  enter,  travel,  or  reside  in  any 
part  of  the  territory  of  the  other  Contracting  Party,  and  shall 
enjoy  full  and  perfect  protection  for  their  persons  and  prop- 
erty  

"In  whatever  relates  to  rights  of  residence  and  travel;  to  the 
possession  of  goods  and  effects  of  any  kind;  to  the  succession 
to  personal  estate,  by  will  or  otherwise,  and  the  disposal  of 
property  of  any  sort  and  in  any  manner  whatsoever  which  they 
may  lawfully  acquire,  the  citizens  or  subjects  of  each  Contract- 
ing Party  shall  enjoy  in  the  territories  of  the  other  the  same 

84  Wilson  v.  Shaw,  204  U.  S.  24,  51    L.  ed.  351. 


143  CONSTITUTION    AND    STATUTES    OF    CALIFORNIA.  [§    147 

privileges,  liberties,  and  rights,  and  shall  be  subject  to  no  higher 
imposts  or  charges  in  these  respects  than  native  citizens  or  sub- 
jects or  citizens  or  subjects  of  the  most  favored  nation." 

§  147.  Constitution  and  statutes  of  California. — The  Consti- 
tution of  the  state  of  California  provides,  in  article  9 : 

"SECTION  1.  A  general  diffusion  of  knowledge  and  intelli- 
gence being  essential  to  the  preservation  of  the  rights  and  liber- 
ties of  the  people,  the  Legislature  shall  encourage  by  all  suitable 
means  the  promotion  of  intellectual,  scientific,  moral,  and  agricul- 
tural improvement." 

"SEC.  5.  The  Legislature  shall  provide  for  a  system  of  com- 
mon schools,  by  which  a  free  school  shall  be  kept  up  and  sup- 
ported in  each  district  at  least  six  months  in  every  year,  after  the 
first  year  in  which  a  school  has  been  established. 

"SEC.  6.  The  public  school  system  shall  include  primary  and 
grammar  schools,  and  such  high  schools,  evening  schools,  normal 
schools,  and  technical  schools  as  may  be  established  by  the  Legis- 
lature, or  by  municipal  or  district  authority.  The  entire  revenue 
derived  from  the  State  school  fund  and  from  the  general  State 
school  tax  shall  be  applied  exclusively  to  the  support  of  the 
primary  and  grammar  school." 

The  public  school  system  required  by  the  Constitution  is  es- 
tablished by  statutes  of  California,  which  provide  that  the  state 
controller  must  each  year  "estimate  the  amount  necessary  to 
raise  the  sum  of  seven  dollars  for  each  census  child  between 
the  ages  of  five  and  seventeen  years  in  the  said  State  of  Cali- 
fornia, which  shall  be  the  amount  necessary  to  be  raised  by 
ad  valorem  tax  for  the  school  purposes  during  the  year." 

The  statutes  also  provide  that  the  board  of  education  of  a  city 
shall  have  authority  "to  establish  and  enforce  all  necessary  rules 
and  regulations  for  the  government  and  efficiency  of  the  schools 
[in  that  city]  and  for  carrying  into  effect  the  school  system;  to 
remedy  truancy;  and  to  compel  attendance  at  school  of  children 
between  the  ages  of  six  and  fourteen  years,  who  may  be  found 
idle  in  public  places  during  school  hours." 

The  Political  Code,  in  the  provision  relative  to  schools,  de- 
clares: "Every  school,  unless  otherwise  provided  by  law,  must 
be  open  for  the  admission  of  all  children  between  six  and  twenty- 
one  years  of  age  residing  in  the  district,  and  the  board  of  school 


§    148]  CONSTRUCTION    OF    TREATIES,    ETC.  144 

trustees,  or  city  board  of  education,  have  power  to  admit  adults 
and  children  not  residing  in  the  district,  whenever  good  reasons 
exist  therefor.  Trustees  shall  have  the  power  to  exclude  chil- 
dren of  filthy  or  vicious  habits,  or  children  suffering  from  con- 
tagious or  infectious  diseases,  and  also  to  establish  separate 
schools  for  Indian  children  and  for  children  of  Mongolian  or 
Chinese  descent.  When  such  separate  schools  are  established, 
Indian,  Chinese,  or  Mongolian  children  must  not  be  admitted  into 
any  other  school. ' '  85 

§  148.  Resolution  as  to  Japanese  children. — On  the  llth  of 
October,  1906,  the  board  of  education  of  San  Francisco  adopted 
this  resolution:  "Resolved,  That  in  accordance  with  Article  X, 
section  1662,  of  the  school  law  of  California,  principals  are  hereby 
directed  to  send  all  Chinese,  Japanese,  or  Korean  children  to 
the  Oriental  Public  School,  situated  on  the  south  side  of  Clay 
street,  between  Powell  and  Mason  streets,  on  and  after  Monday. 
October  15,  1906." 

By  the  school  system  thus  established  school  privileges  were  pro- 
vided for  all  resident  children,  resident  as  well  as  alien,  and  in 
estimating  the  amount  to  be  raised  by  taxation  for  school  pur- 
poses all  resident  children  were  included,  as  likewise  the  fund 
for  the  support  of  the  schools  was  to  be  secured  by  taxation  upon 
the  property  of  all  residents,  including  both  aliens  and  citizens. 
The  law  provided  for  the  compulsory  attendance  of  all  resident 
children,  whether  of  aliens  or  of  citizens,  but  under  the  resolution 
of  the  board  of  education  while  free  admission  to  schools  in 
the  proximity  of  their  homes  to  the  children  of  resident  aliens 
of  all  other  nationalities  was  given,  the  children  of  Indians, 
Chinese  and  Japanese  were  excluded  from  these  schools.  It  is 
true  that  the  same  character  of  education  was  given  to  the 
Japanese  children  who  might  attend  the  Oriental  school,  but  un- 
less Japanese  children  should  consent  to  attend  such  school  or 
should  be  forced  to  attend,  they  would  be  deprived  of  an  educa- 
tion furnished  by  the  government.  It  will  be  noticed  that  the 
exclusion  of  Japanese  children  was  confined  to  the  primary  and 
grammar  grades,  but  they  were  admitted  to  the  higher  grades. 
The  claim  made  by  the  government  of  Japan  was  that  as  the 
children  of  resident  citizens  of  other  foreign  countries  were  ad- 

85  Cal.  Pol.  Code,  sec.  1662. 


145 


DEBATE  IN  UNITED  STATES  SENATE. 


[§  149 


mitted  to  the  public  schools,  the  exclusion  of  citizens  of  Japan 
residing  in  the  United  States  constituted  a  denial  of  the  same 
privileges,  liberties  and  rights  relating  to  the  right  of  residence 
as  were  accorded  to  the  citizens  or  subjects  of  the  most  favored 
nation. 


§  149.  Debate  in  United  States  Senate. — The  subject  attracted 
much  attention  throughout  the  United  States,  and  was  debated 
ably  both  in  the  Senate  8G  and  the  House  of  Representatives.  In 


86  The  resolution  referred  to  in 
the  text  was  called  up  for  debate 
on  December  12,  1906,  and  the  fol- 
lowing discussion  took  place. 

"Mr.  RAYNER.  Mr.  President, 
the  proposition  covered  by  this  resolu- 
tion is  to  my  mind  a  most  important 
one.  The  President  has  stated  in  his 
message  that  the  Federal  Government 
possesses  some  power  in  connection 
with  the  subject-matter  set  forth  in 
the  resolution,  and  that  everything 
within  his  power  shall  be  done  and 
all  of  the  forces,  military  and  civil,  of 
the  United  States,  which  he  may  law- 
fully employ  will  be  employed  for 
that  purpose.  It  is  very  important 
therefore  that  we  should  know,  and 
the  country  should  know,  and  the 
President  should  understand,  whether 
he  has  any  power  in  the  premises  at 
all,  because  it  is  quite  a  serious  mat- 
ter in  view  of  the  great  calamity  that 
has  lately  befallen  the  city  of  San 
Francisco  for  the  President  to  con- 
template the  bombarding  of  the  city 
at  this  time,  and  to  declare  war 
against  the  boards  of  county  school 
trustees  of  California,  if  there  is  no 
justification  or  pretext  upon  which 
such  ferocious  proceedings  can  be 
undertaken. 

"With  great  respect  and  deference 

to   the   President,   he   is   exercising  a 

great      many     functions  —  executive, 

legislative,    and   judicial,    lawful    and 

Treaties — 10 


unlawful,  constitutional  and  unconsti- 
tutional. If  he  is  possessed  of  the 
idea  that  he  is  the  supervisor  of  all 
of  the  public  schools  of  the  various 
States  of  the  Union,  and  he  seems 
to  be  impressed  with  this  idea,  be- 
cause in  the  very  last  paragraph  of 
his  message  he  recommends  to  Con- 
gress the  establishment  of  shooting 
galleries  in  all  of  the  large  public 
schools  of  the  country,  we  must  either 
disabuse  his  mind  of  this  fancy  or 
we  must  let  him  know  that  we  agree 
with  him  as  to  the  omnipotence  of  his 
jurisdiction.  If  he  can  take  posses- 
sion of  the  public  schools  of  Califor- 
nia and  compel  the  State  to  admit  to 
them  Japanese  '  students  contrary  to 
the  laws  of  California,  he  could  with 
equal  propriety  send  us  an  amend- 
ment to  the  Santo  Domingo  treaty 
and  demand  the  admission  of  the 
negro  children  of  Santo  Domingo  into 
the  white  schools  of  South  Carolina  or 
of  any  other  State  of  the  Union.  Of 
course,  if  the  people  have  come  to  the 
conclusion  that  everything  that  the 
President  recommends  is  right,  then 
there  is  hardly  any  use  in  contesting 
any  of  his  propositions  or  recommen- 
dations, and  instead  of  conferring 
upon  him  the  power  to  give  Congress 
information  of  the  state  of  the 
Union,  we  might  confer  upon  him 
the  function  of  furnishing  his  own 
peculiar  views  upon  the  entire  state 


§  149] 


CONSTRUCTION    OF    TREATIES,    ETC. 


146 


the  Senate,  Senator  Rayner,  of  Maryland,  on  December  4,  1906, 
introduced  this  resolution:  "Resolved,  That  in  the  opinion  of  the 
Senate  this  Government  has  no  right  to  enter  into  any  treaty 


of  the  universe  and  recommend- 
ing any  improvements  or  changes  in 
the  general  plan  of  creation  that  he 
may  deem  expedient,  from  the  cradle 
to  the  grave.  In  fact,  the  President, 
upon  page  29  of  his  message,  antici- 
pates the  cradle  and  makes  a  recom- 
mendation upon  the  state  of  the 
Union  that  tends  to  place  in  his  hands 
the  establishment  of  the  birth  rate  of 
the  country.  Now,  if  we  can  only 
supplement  this  function  by  giving 
him  complete  jurisdiction  over  the 
death  rate  we  will  then  have  a  ruler 
whose  ubiquity  is  uncircumscribed  and 
whose  unlimited  possibilities  are  be- 
yond the  reach  of  human  contempla- 
tion. 

"I  believe  that  there  is  a  sufficient 
residuum  of  common  sense  and  inde- 
pendent thought  in  the  American  peo- 
ple to  keep  the  Executive  within  the 
prerogatives  of  his  office  and  to  let 
him  quietly  and  respectfully  under- 
stand that  the  Executive  chair  is  not 
exactly  the  place  from  which  to  de- 
liver exhortations  or  a  course  of  di- 
dactics upon  either  the  natural  rights 
or  the  infirmities  of  the  human  race, 
and  that  in  his  messages  and  recom- 
mendations he  ought  to  confine  him- 
self to  the  functions  prescribed  by  the 
Constitution. 

"I  desire  to  say,  in  passing,  that  1 
coincide  with  everything  that  the  Pres- 
ident says  in  praise  of  the  people  of 
Japan.  In  the  war  between  Japan 
and  Eussia  my  sympathies  were  en- 
tirely with  the  Government  of  Japan, 
and  whatever  he  says  in  honor  of  its 
marvelous  race  meets  with  my  own 
hearty  commendation.  I  always 
thought  it  was  a  great  shame  that 


through  the  kindly  and  well-inten- 
tioned offices  of  the  President,  Japan 
should  have  been  overpowered  in  the 
conference  room  when  she  had  been 
victorious  in  every  battle  upon  the 
land  and  on  the  sea,  and  I  think  that 
the  dauntless  courage  and  the  almost 
superhuman  heroism,  against  over- 
whelming odds,  of  her  military  and 
naval  forces  is  without  a  parallel 
upon  the  pages  of  ancient  or  modern 
history.  I  propose  to  discuss  the 
question  under  consideration  entirely 
outside  of  the  particular  circum- 
stances that  environ  it,  upon  general 
grounds  of  constitutional  law,  and 
certainly  with  no  feeling  of  hostility 
upon  my  part  toward  this  wonderful 
people  with  whom  this  controversy  has 
arisen. 

"THE  TREATY  WITH  JAPAN — COMPARI- 
SON WITH  CHINESE  TREATY. 

"In  my  brief  argument  that  I  shall 
address  to  this  body  I  shall  plant  my- 
self upon  two  propositions: 

' '  First,  that  there  is  no  provision 
whatever  in  the  treaty  with  Japan 
that  confers  the  right  that  the  Presi- 
dent speaks  of,  or  gives  to  the  Gov- 
ernment of  Japan  the  privileges  that 
it  claims  in  connection  with  the  public 
school  system  of  California  or  of  any 
other  State. 

' '  Secondly,  the  more  important 
question,  if  there  was  such  a  provision 
in  this  treaty,  or  any  other  treaty  con- 
ferring this  right,  the  treaty  would 
be  void  and  without  any  authority  up- 
on the  part  of  the  United  States  to 
make  it,  and  in  violation  of  the  Con- 
stitution and  the  treaty-making  power 
of  the  Government. 


147 


DEBATE  IN   UNITED   STATES  SENATE. 


[§  149 


with  any  foreign  government  relating  in  any  manner  to  any 
of  the  public  school  systems  of  any  of  the  States  of  the  Union; 
and 


' '  The  first  step  that  it  is  necessary 
for  me  to  take  in  this  discussion  is  to 
quote  the  provisions  of  the  treaty  with 
Japan  that  have  been  held  to  be  ap- 
plicable to  the  subject  in  hand,  the 
ratifications  of  which  treaty  were  ex- 
changed by  the  respective  Govern- 
ments on  the  21st  of  March,  1895.  I 
win  ask  the  Secretary  kindly  to  read 
those  provisions.  It  will  take  but  a 
moment. 

"The  VICE-PRESIDENT.  With- 
out objection,  the  Secretary  will  read 
as  requested. 

' '  The  Secretary  read  as  follows : 
"  'ARTICLE  I.  The  citizens  or  sub- 
jects of  each  of  the  two  high  contract- 
ing parties  shall  have  full  liberty  to 
enter,  travel,  or  reside  in  any  part  of 
the  territories  of  the  other  contracting 
party,  and  shall  enjoy  full  and  per- 
fect protection  for  their  persons  and 
property. 

1 '  '  They  shall  have  free  access  to  the 
courts  of  justice  in  pursuit  and  de- 
fence of  their  rights;  they  shall  be  at 
liberty  equally  with  native  citizens  or 
subjects  to  choose  and  employ  lawyers, 
advocates,  and  representatives  to  pur- 
sue and  defend  their  rights  before 
such  courts,  and  in  all  other  matters 
connected  with  the  administration  of 
justice  they  shall  enjoy  all  the  rights 
and  privileges  enjoyed  by  native  citi- 
zens or  subjects. 

' '  '  In  whatever  relates  to  rights  of 
residence  and  travel;  to  the  possession 
of  goods  and  effects  of  any  kind ;  to 
the  succession  to  personal  estate,  by 
will  or  otherwise,  and  the  disposal  of 
property  of  any  sort  and  in  any  man- 
ner whatsoever  which  they  may  law- 
fully acquire,  the  citizens  or  subjects 


of  each  contracting  party  shall  enjoy 
in  the  territories  of  the  other  the  same 
privileges,  liberties,  and  rights,  and 
shall  be  subject  to  no  higher  imposts 
or  charges  in  these  respects  than  na- 
tive citizens  or  subjects  or  citizens  or 
subjects  of  the  most  favored  nation. 
The  citizens  or  subjects  of  each  of  the 
contracting  parties  shall  enjoy  in  the 
territories  of  the  other  entire  liberty 
of  conscience,  and  subject  to  the  laws, 
ordinances,  and  regulations,  shall  en- 
joy the  right  of  private  or  public  exer- 
cise of  their  worship,  and  also  the 
right  of  burying  their  respective  coun- 
trymen, according  to  their  religious 
customs,  in  such  suitable  and  conve- 
nient places  as  may  be  established  and 
maintained  for  that  purpose. 

t  <  t  They  shall  not  be  compelled,  un- 
der any  pretext  whatsoever,  to  pay 
any  charges  or  taxes  other  or  higher 
than  those  that  are,  or  may  be  paid 
by  native  citizens  or  subjects  or  citi- 
zens or  subjects  of  the  most  favored 
nation. 

' '  '  The  citizens  or  subjects  of  either 
of  the  contracting  parties  residing  in 
the  territories  of  the  other  shall  be 
exempt  from  all  compulsory  military 
service  whatsoever,  whether  in  the 
Army,  Navy,  National  Guard,  or  Mili- 
tia; from  all  contributions  imposed 
in  lieu  of  personal  service;  and  from 
all  forced  loans  or  military  exactions 
or  contributions.' 

11  'ARTICLE  XIV.  The  high  con- 
tracting parties  agree  that,  in  all  that 
concerns  commerce  and  navigation, 
any  privilege,  favor,  or  immunity 
which  either  high  contracting  party 
has  actually  granted,  or  may  herein- 
after grant,  to  the  Government,  ships, 


149] 


CONSTRUCTION    OP    TREATIES,    ETC. 


148 


"Resolved,  further,  That  in  the  opinion  of  the  Senate  there  is 
no  provision  in  the  treaty  between  the  United  States  and  the 
Government  of  Japan  that  relates  in  any  manner  to  this  sub- 


citizens,  or  subjects  of  any  other 
State,  shall  be  extended  to  the  Govern- 
ment, ships,  citizens,  or  subjects  of  the 
other  high  contracting  party,  gratui- 
tously, if  the  concession  in  favor  of 
that  other  State  shall  have  been 
gratuitous,  and  on  the  same  or  equiva- 
lent conditions  if  the  concession  shall 
have  been  conditional;  it  being  their 
intention  that  the  trade  and  naviga- 
tion of  each  country  shall  be  placed, 
in  all  respects,  by  the  other  upon  the 
footing  of  the  most  favored  nation. ' 

"Mr.  KAYNEE.  There  is  not  a 
clause  or  a  line  of  this  treaty  that 
contains  by  expression  or  intendment 
the  slightest  reference  to  the  public 
school  systems  of  any  of  the  States 
of  the  Union,  or  confers  any  rights 
whatever  upon  the  citizens  of  Japan 
to  enjoy  the  privileges  of  their  pub- 
lic educational  institutions.  There  is 
not  a  clause  or  a  line,  although  I  un- 
derstand that  the  President  has  been 
advised  to  the  contrary,  that,  to  the 
professional  mind,  would  admit  of 
such  a  construction.  The  most  liberal 
interpretation  of  any  of  its  terms 
does  not  allow  such  an  interpolation 
or  insertion  to  be  made.  The  treaty 
does  not  even  contain  the  most-fav- 
ored-nation clause,  except  in  refer- 
ence to  the  particular  objects  that  are 
therein  specifically  enumerated. 

"If  I  have  made  a  mistake  upon 
this  point  let  some  Senator  upon  the 
floor  or  some  of  the  President's  legal 
advisers  upon  the  treaty  refer  me  to 
the  clause  that  carries  with  it  such  a 
construction.  Let  the  President  eluci- 
date his  message  upon  this  point  and 
give  us  the  language  in  the  treaty  that 
authorized  him  to  state  that  he  had 


any  power  or  jurisdiction  over  this 
subject  whatever.  It  cannot  be  done, 
because  here  is  the  treaty,  and  no  one 
arises  here  to  justify  his  construction 
of  it.  If  there  is  any  decision  in  the 
United  States  that  holds  that  any  of 
the  rights  granted  by  the  treaty  carry 
with  them  the  privilege  to  the  sub- 
jects of  Japan  of  even  partaking  of 
the  advantages  of  the  educational  sys- 
tem of  our  States,  let  us  have  that  de- 
cision. I  have  examined  them  all  very 
carefully  that  relate  to  treaties  and  I 
find  no  authority  to  sustain  such  a 
proposition. 

' '  Now,  let  me  call  your  attention  to 
a  very  peculiar  circumstance,  and  that 
is  the  Burlingame  treaty,  which  was 
made  with  China,  because  that  does 
contain  such  a  provision.  It  is  only 
a  few  lines.  The  Burlingame  treaty 
with  China,  which  was  proclaimed  on 
February  5,  1870,  has  the  following 
provision  in  it: 

"  'ARTICLE  VII.  Citizens  of  the 
United  States  shall  enjoy  all  the  priv- 
ileges of  the  public  educational  insti- 
tutions under  the  control  of  the  Gov- 
ernment of  China,  and,  reciprocally, 
Chinese  subjects  shall  enjoy  all  the 
privileges  of  the  public  educational 
institutions  under  the  control  of 
the  Government  of  the  United  States 
which  are  enjoyed  in  the  respec- 
tive countries  by  citizens  or  sub- 
jects of  the  most-favored  nation. 
The  citizens  of  the  United  States  may 
freely  establish  and  maintain  schools 
within  the  Empire  of  China  at  those 
places  'where  foreigners  are  by  treaty 
permitted  to  reside,  and,  reciprocally, 
Chinese  subjects  may  enjoy  the  same 


149 


DEBATE  IN  UNITED   STATES  SENATE. 


[§  149 


;ject  or  in  any  way  interferes  with  the  right  of  the  State  of  Cali- 
fornia to  conduct  and  administer  its  system  of  public  schools  in 
accordance  with  its  own  legislation;  and 


privileges  and  immunities  in  the 
United  States.' 

"  'Of  the  United  States.'  It  does 
not  say  l  of  the  States, '  but  of  the 
United  States. 

"Mr.  BLACKBURN.  That  is  a 
distinction.  , 

"Mr.  EARNER.  I  say  that  is  a 
distinction.  I  am  coming  to  that. 
Nevertheless  it  contains  a  provision 
that  the  Japanese  treaty  does  not  con- 
tain. The  Japanese  treaty  does  not 
give  any  rights  to  any  public  educa- 
tional institution  controlled  by  the 
United  States. 

"Now,  as  I  was  going  to  say,  the 
Japanese  treaty  contains  no  such  pro- 
vision as  this,  and  the  favored  clause 
does  not  cover  it. 

"Mr.  FORAKER.    Mr.  President — 

' '  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Ohio? 

"Mr.  RAYNER.     I  do. 

"Mr.  FORAKER.  If  it  would  not 
interrupt  the  Senator,  I  would  ask 
him  if  he  can  state  the  respective 
dates  of  'those  two  treaties? 

"Mr.  RAYNER.  The  Burlingame 
treaty,  February  5,  1870.  The  ratifi- 
cations of  the  Japanese  treaty  were 
exchanged  by  the  respective  govern- 
ments on  the  21st  of  March,  1895, 
twenty-five  years  afterwards,  and 
there  is  not  a  word  of  it  in  this  Japan- 
ese treaty.  The  favored-nation  clause 
does  not  cover  it,  because  this  clause 
is  restricted  to  the  objects  that  are 
specified  in  the  treaty  and  no  one  of 
these  objects  relates  to  educational 
privileges;  and  even  if  there  had  been 
a  provision  in  the  Japanese  treaty 
similar  to  the  one  in  the  Chinese 


treaty,  it  would  not  apply  to  this 
case,  because  the  treaty  with  China 
confers  educational  privileges  in  edu- 
cational institutions  under  the  control 
of  the  Government  of  the  United 
States,  and  neither  the  educational  in- 
stitutions of  California  nor  of  any 
other  State  of  the  Union  are  under  the 
control  of  the  United  States. 

1 '  The  educational  institutions  of  the 
States  are  not  under  the  control 
of  the  Government  of  the  United 
States,  and  therefore,  by  virtue  of 
this  provision  in  this  treaty,  the  Chi- 
nese enjoy  no  privileges  at  all.  There- 
fore, if  this  clause  had  been  incor- 
porated in  the  Japanese  treaty,  as  I 
shall  show  a  little  farther  on,  it 
would  not  cover  the  proposition  we  are 
now  discussing. 

"Mr.  FORAKER.    Mr.  President— 

' '  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield 
further  to  the  Senator  from  Ohio? 

"Mr.  RAYNER.     I  do. 

"Mr.  FORAKER.  I  wish  to  call 
the  Senator's  attention  to  the  fact 
that  the  United  States  Government 
has  no  educational  institutions  as 
such,  and  that  immediately  following 
the  ratification  of  the  treaty  with 
China,  and  ever  since  that,  under  the 
clauses  granting  certain  exceptions, 
Chinese  students  have  been  entitled, 
except  as  it  has  been  modified  by 
treaty  since,  to  come  to  this  country 
and  seek  education  in  the  institutions 
that  are  situated  within  the  States 
and  are  not  at  all  under  the  control 
of  the  United  States  Government. 

' '  Mr.  RAYNER.  There  is  no  doubt 
about  that  proposition.  Any  of  the 
States  may  admit  any  Chinese  or  Jap- 


§  149] 


CONSTRUCTION    OF    TREATIES,    ETC. 


150 


"Resolved,  further,  That  it  is  the  duty  of  the  President  of  the 
United  States  to  notify  the  Government  of  Japan  and  notify  any 
foreign  government  with  whom  the  question  may  arise  that  the 


anese  student  or  any  other  sort  if  they 
choose.  That  is  entirely  within  the 
province  of  the  State,  but  the  ques- 
tion here  is  a  question  of  alleged  dis- 
crimination in  the  public  school  sys- 
tem of  California.  Massachusetts  or 
any  other  State  of  the  Union  has  a 
perfect  right  to  admit  any  Chinese 
or  Japanese  who  want  to  come.  That 
does  not  affect  the  question,  I  re- 
spectfully submit,  that  I  am  discuss- 
ing. I  absolutely  deny  that  the  ad- 
mission of  these  students  into  the  edu- 
cational institutions  of  the  State  is  in 
compliance  with  and  in  furtherance  of 
the  treaty. 

"I  might  rest  this  entire  subject 
right  here,  because  this  is  an  end  of 
the  claim  of  Japan  if  the  treaty  does 
not,  either  by  expression  or  intend- 
ment,  contain  the  controverted  matter, 
but  I  have  arisen  for  a  larger  purpose 
and  a  deeper  inquiry;  and  inasmuch 
as  what  has  taken  place  here  may 
occur  over  and  over  again  under  the 
treaty-making  power  of  the  United 
States,  I  shall  now  proceed  to  the  more 
important  proposition,  and  that  is 
that  this  Government  has  no  power 
under  the  Constitution  of  the  United 
States  to  make  any  treaty  with  any 
foreign  government  covering  the  sub- 
ject in  question,  or  overriding  the 
legislation  of  any  State  of  the  Union 
in  connection  therewith. 

"THE  ISSUES  INVOLVED  IN  THE  CON- 
TROVERSY. 

"Now,  let  me  quote — because  I 
must  say  that  to  me  it  has  been  the 
most  interesting  subject  in  constitu- 
tional law,  at  least  that  I  have  ever 
examined  or  been  interested  in — the 


sixth  article  of  the  Constitution.  It 
is  not  an  academic  discussion;  it  is 
likely  to  occur  over  and  over  again 
with  all  our  oriental  possessions,  be- 
cause if  the  President  persists  in  his 
purpose,  the  day  will  come  when  he 
will  demand  that  he  has  the  right, 
either  under  the  treaty-making  power 
or  under  the  amendments  to  the  Con- 
stitution, to  exercise  this  privilege  in 
connection  with  the  admission  of  for- 
eign students  into  the  public  educa- 
tional institutions  of  the  States. 

"Now,  one  may  read  this  article 
of  the  Constitution  without  under- 
standing it.  Just  read  it.  Let  a 
layman  read  it.  It  leaves  an  im- 
pression upon  the  mind  of  every 
man  who  has  not  studied  the  Consti- 
tution that  the  treaty  overrides  the 
reserved  rights  of  the  States  when- 
ever it  comes  in  contact  with  them. 
No  matter  how  brilliant  the  lawyer 
may  be,  no  matter  what  his  talents  or 
resources  may  consist  of,  I  do  not 
care  for  the  opinion  of  anyone  who 
has  not  thoroughly  mastered  and 
analyzed  the  authorities  upon  this 
subject  and  made  the  proper  dis- 
criminations between  them: 

1 '  '  This  Constitution  and  the  laws 
of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all 
treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United 
States — ' 

"Now,  that  is  the  distinction  that 
the  extreme  school  plants  itself  on 
between  these  two  propositions. 
When  it  speaks  of  laws,  it  says  laws 
which  shall  be  made  in  pursuance  of 
the  Constitution.  When  the  Consti- 
tution speaks  of  treaties,  it  says  that 


151 


DEBATE  IN  UNITED  STATES  SENATE. 


:§  149 


public  educational  institutions  of  the  States  are  not  within  the 
jurisdiction  of  the  United  States,  and  that  the  United  States  has 
no  power  to  regulate  or  supervise  their  administration." 


all  treaties  which  shall  be  made  under 
the  authority  not  of  the  Constitution, 
but  of  the  United  States.  I  shall,  I 
think,  demonstrate  within  a  few 
moments  that  there  is  no  possible  dis- 
tinction in  the  authorities  between 
these  two  clauses. 

''The  sixth  article,  which  lies  at 
the  bottom  of  this  controversy,  reads 
partly  as  follows: 

II  'ARTICLE  VI.     This  Constitution 
and   the    laws    of   the    United   States 
which    shall    be    made    in    pursuance 
thereof,    and    all     treaties     made     or 
which  shall  be  made  under  the  author- 
ity of  the  United  States,  shall  be  the 
supreme    law    of    the    land,    and    the 
judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution 
or  laws  of  any  State  to  the  contrary 
notwithstanding. ' 

I 1 1  plant   myself  firmly  and  unal- 
terably upon  the  proposition  that  we 
can  make  no  treaty  that  violates  any 
of  the  provisions  of  the  Constitution 
of  the  United  States,  that  the  treaty- 
making   power   in    the    sixth    article 
must  be  construed    in    pari    materia 
with  all  the-  other  provisions  contained 
in  the  Constitution,  and  if  the  treaty 
comes  in  conflict  with  any  of  the  limi- 
tations of   the  instrument  the  treaty 
must  yield  and  the  Constitution  pre- 
vail. 

"As  a  corollary  of  this  proposition 
I  plant  myself  upon  the  doctrine 
that  any  treaty  that  violates  Article 
X  of  the  Constitution  and  infringes 
upon  the  reserved  rights  of  the  States 
which  have  not  been  delegated  to  the 
General  Government,  and  embraces 
subjects  that  belong  to  the  States, 
and  that  are  not  necessary  to  carry 


out  the  purposes  of  the  Government 
as  defined  in  the  Constitution,  is  ultra 
vires  and  not  within  the  capacity  of 
the  Government  to  make. 

"It  is  my  opinion  that  this  subject 
involves  one  of  the  most  interesting 
problems  that  has  ever  been  before 
this  body,  and  that  the  suggestion  in 
the  message  of  the  President,  with 
great  respect  to  him,  is  not  of  the 
slightest  value  here,  because  in  order 
to  arrive  at  a  proper  conclusion  upon 
this  important  inquiry  it  is  necessary 
to  assiduously  examine  the  great 
mass  of  precedents,  and  authorities, 
and  decisions  that  have  been  rendered 
upon  the  subject,  and  I  am  quite  sure 
that  I  am  entirely  within  bounds 
when  I  say  that  the  President  has  not 
undertaken  this  task. 

"THE  SEVERAL  SCHOOLS  OF  CONSTRUC- 
TION. 

1 1  There  are  two  separate  schools 
of  construction  upon  the  subject  at 
issue.  These  schools  are  professional 
schools  and  schools  of  commentators 
and  text-writers  upon  the  Constitu- 
tion, and  it  is  not  entirely  accurate 
to  designate  them  as  the  respective 
advocates  of  national  and  States' 
rights  systems. 

"One  of  these  schools  claim  that 
the  treaty-making  power  is  an  in- 
herent element  of  sovereignty,  and 
though  it  is  a  conferred  power  in 
the  Constitution  it  would  exist  as  an 
essential  attribute  of  this  Govern- 
ment  without  delegation,  and  that 
when  it  is  once  delegated  it  need 
not  derive  its  authority  from  the 
Constitution,  and  that  whenever  it 
comes  in  conflict  with  the  provisions 


150] 


CONSTRUCTION   OP    TREATIES,    ETC. 


152 


§  150.  Position  of  the  United  States. — In  the  construction  of 
this  treaty  the  first  question  that  presented  itself  was  as  to  the 
extent  of  the  rights  included  under  the  term  "  residence. " 


of  a  State  law  or  a  State  constitu- 
tion, by  the  terms  of  Article  VI  of 
the  Constitution  the  treaty  prevails. 
Some  of  the  adherents  of  this  school 
have  proceeded  to  the  most  unfor- 
tunate limits  in  their  construction  of 
the  treaty-making  power,  and  have 
held  that  this  power  is  superior  to 
the  Constitution  and  is  not  in  any 
manner  governed  by  its  inhibitions 
or  limitations. 

"The  second  school  stands  upon 
the  doctrine  that  the  treaty-making 
power  exists  for  the  purpose  of  car- 
rying out  the  purposes  and  objects 
of  this  Government  as  prescribed  and 
defined  by  the  Constitution,  and  that 
no  treaty  is  valid  that  violates  the 
Constitution  or  that  under  its  pro- 
visions surrenders  the  rights  reserved 
and  belonging  to  the  States. 

''I  am  a  disciple  of  the  second 
school,  not  alone  as  a  party  man,  but 
as  a  student  of  Constitutional  his- 
tory, and  I  proceed  now  to  give  the 
reasons  for  the  faith  that  is  in  me. 

"The  most  instructive  step  that  I 
can  take  in  this  discussion  is  to  give, 
in  the  language  of  their  advocates, 
the  two  standards  that  separate  these 
two  political  creeds,  so  that  the  dis- 
tinguishing features  between  them 
can  be  clearly  and  fully  compre- 
hended and  understood. 

"Mr.  Charles  Henry  Butler,  the 
present  reporter  of  the  Supreme 
Court,  and  a  man  of  great  learning 
and  industry,  in  a  valuable  text-book 
that  he  has  written  upon  the  treaty- 
making  power  of  the  United  States, 
which  I  think  is  mainly  wrong  in  the 
conclusions  that  it  reaches,  but  which 
is  full  of  the  most  interesting  infor- 


mation upon  the  subject,  thus  states 
his  own  views  and  the  views  of  those 
who  belong  to  the  first  school  of 
treaty-making  power  interpretation 
that  I  have  referred  to: 

"  'First.  That  the  treaty-making 
power  of  the  United  States,  as  vested 
in  the  central  Government,  is  derived 
not  only  from  the  powers  expressly 
conferred  by  the  Constitution,  but 
that  it  is  also  possessed  by  that  Gov- 
ernment as  an  attribute  of  sover- 
eignty, and  that  it  extends  to  every 
subject  which  can  be  the  basis  of  ne- 
gotiation and  contract  between  any 
of  the  sovereign  powers  of  the  world, 
or  in  regard  to  which  the  several 
States  of  the  Union  themselves  could 
have  negotiated  and  contracted  if  the 
Constitution  had  not  expressly  pro- 
hibited the  States  from  exercising  the 
treaty-making  power  in  any  manner 
whatever  and  vested  that  power  ex- 
clusively in  and  expressly  delegated 
it  to  the  Federal  Government. 

"  'Second.  That  the  power  to  leg- 
islate in  regard  to  all  matters  af- 
fected by  treaty  stipulations  and  re- 
lations is  coextensive  with  the  treaty- 
making  power,  and  that  acts  of  Con- 
gress enforcing  such  stipulations 
which,  in  the  absence  of  treaty  stipu- 
lations, would  be  unconstitutional  as 
infringing  upon  the  powers  reserved 
to  the  States,  are  constitutional,  and 
can  be  enforced,  even  though  they 
may  conflict  with  State  laws  or  pro- 
visions of  State  constitutions. 

"  'Third.  That  all  provisions  in 
State  statutes  or  constitutions  which 
in  any  way  conflict  with  any  treaty 
stipulations,  whether  they  have  been 
made  prior  or  subsequent  thereto, 


153 


POSITION  OF  THE  UNITED  STATES. 


[§  150 


Aside  from  the  question  of  the  power  of  the  government  to  pro- 
vide by  a  treaty  properly  expressing  the  privilege  for  the  ad- 
mission of  alien  children  to  the  public  schools  of  a  state,  there 


must  give  way  to  the  provisions  of 
the  treaty,  or  act  of  Congress  based 
on  and  enforcing  the  same,  even  if 
such  provisions  relate  to  matters 
wholly  within  State  jurisdiction.' 

"The  tenets  of  the  school  in  which 
I  have  been  trained  are  succinctly 
stated  in  a  masterly  way  by  that  em- 
inent constitutional  lawyer,  the  Hon. 
John  Eandolph  Tucker,  in  a  report 
that  he  rendered  to  the  Forty-eighth 
Congress,  and  which  reads,  in  part, 
as  follows : 

"  'The  language  of  the  Constitu- 
tion of  the  United  States  which  gives 
the  character  of  ' '  supreme  law ' '  to 
a  treaty,  confines  it  to  "  treaties  made 
under  the  authority  of  the  United 
States."  That  authority  is  limited 
and  defined  by  the  Constitution  itself. 
The  United  States  have  no  unlimited, 
but  only  delegated  authority.  The 
power  to  make  treaties  is  bounded 
by  the  same  limits,  which  are  pre- 
scribed for  the  authority  delegated 
to  the  United  States  by  the  Constitu- 
tion. To  suppose  that  a  power  to 
make  treaties  with  foreign  nations  is 
unlimited  by  the  restraints  imposed 
on  the  power  delegated  to  the  United 
States  would  be  to  assume  that  by 
such  treaty  the  Constitution  itself 
might  be  abrogated  and  the  liberty 
of  the  people  secured  thereby  de- 
stroyed. The  power  to  contract  must 
be  commensurate  with  and  not  tran- 
scend the  powers  by  virtue  of  which 
the  United  States  and  their  Govern- 
ment exist  and  act.  It  cannot  con- 
tract with  a  foreign  nation  to  do  what 
is  unauthorized  or  forbidden  by  the 
Constitution  to  be  done.  The  power 
to  contract  is  limited  by  the  power  to 
do.  (3  Story  on  Const.,  sec.  1501.) 


"  'It  is  on  this  principle  that  a 
treaty  cannot  take  away  essential  lib- 
erties secured  By  the  Constitution  to 
the  people.  The  treaty  power  must 
be  subordinate  to  these.  A  treaty 
cannot  alien  a  State  or  dismember 
the  Union,  because  the  Constitution 
forbids  both. 

"  'In  all  such  cases  the  legitimate 
effect  of  a  treaty  is  to  bind  the 
United  States  to  do  what  they  are 
competent  to  do  and  no  more.  The 
United  States  by  treaty  can  only 
agree  with  another  nation  to  perform 
what  they  have  authority  to  perform 
under  the  constitutional  charter 
creating  them.  The  treaty  makes  the 
nexus  which  binds  the  faith  of  the 
Union  to  do  what  their  Constitution 
gives  authority  to  do.  A  treaty 
made  under  that  authority  may  do 
this;  all  it  attempts  to  do  beyond 
it  is  ultra  vires — is  null,  and  cannot 
bind  them./ 

' '  In  this  admirable  report  and 
careful  review  of  the  treaty-making 
power  Mr.  Tucker  remarks  that — 

"  'If  the  treaty-making  power  ex- 
tends to  the  limits  that  are  claimed 
for  it  by  the  advocates  of  an  inherent 
right,  then  a  treaty  may  borrow 
money,  regulate  commerce,  coin 
money,  establish  post-offices,  and  pro- 
vide for  raising  armies  and  navies  of 
the  United  States,  and  may  thus  an- 
nul or  paralyze  all  the  powers  of  Con- 
gress, and  admit  a  foreign  nation  to 
exact,  with  the  alternative  of  war,  a 
compliance  with  these  sweeping  stipu- 
lations in  the  internal  government  of 
the  people  of  the  United  States.' 

"I  am  aware  of  the  fact  that  some 
of  the  conclusions  reached  by  this 
eminent  statesman  in  this  report  have 


§  150] 


CONSTRUCTION   OF    TREATIES,    ETC. 


154 


was  the  preliminary  question  whether  the  right  to  attend  the 
primary  schools  was  a  right,  liberty  or  privilege  of  residence 
within  the  meaning  of  the  language  of  the  treaty,  and  whether  the 


been  assailed  at  times,  but  I  am  also 
aware  of  the  fact  that  the  main 
proposition  upon  which  he  stands, 
and  from  which  I  have  quoted  in  the 
first  instance,  has  never  been  im- 
peached nor  impugned  by  any  Federal 
or  State  authority  that  I  know  of. 

"A  TREATY  CANNOT  VIOLATE  THE  CON- 
STITUTION. 

' '  I  want  to  proceed  one  step 
further  in  the  particular  point  that 
I  am  now  discussing,  and  I  desire 
to  address  these  remarks  to  the  ex- 
treme advocates  of  the  doctrine  of 
an  'unlimited  treaty-making  power.' 

' '  Let  me  take  subsection  8  of  sec- 
tion 9  of  Article  I  of  the  Constitution 
of  the  United  States,  which  provides 
'that  no  title  of  nobility  shall  be 
granted  by  the  United  States.'  Is 
there  anyone  here  that  believes  we 
would  have  the  right  in  a  treaty  to 
grant  a  title  of  nobility  to  the  sub- 
ject of  a  foreign  government? 

''Subsection  4  of  section  1  of  Ar- 
ticle II  of  the  Constitution  provides 
'that  no  person  except  a  natural-born 
citizen  ....  shall  be  eligible  to  the 
office  of  President,  Does  anyone 
here  believe  that  we  could  make  a 
treaty  with  a  foreign  power  abrogat- 
ing this  section  in  its  interests? 

' '  Article  I  of  the  amendments  pro- 
vides: 'Congress  shall  make  no  law 
respecting  an  establishment  of  re- 
ligion or  prohibiting  the  free  exercise 
thereof. '  Is  there  anyone  of  the 
opinion  that  we  could  make  a  treaty 
with  a  foreign  nation  admitting  their 
subject  to  our  shores,  and  then,  in 
the  same  treaty,  provide  that  they 


should  not  have  the  privilege  of  exer- 
cising their  religious  belief? 

"Mr.  President,  I  am  talking  to 
the  extreme  advocates  of  this  doc- 
trine. I  am  coming  to  the  middle 
class  presently.  I  am  taking  now  the 
doctrine  of  the  men  who  claim  that 
the  treaty-making  power  is  an  inhe- 
rent power,  and  is  not  circumscribed 
either  by  the  delegated  powers  or  by 
the  limitations  or  inhibitions  of  the 
Constitution.  I  will  come  to  the  men 
of  more  moderate  views  of  the  first 
school  in  a  few  moments.  I  am 
planting  this  argument  now  upon  the 
doctrine  of  Mr.  Butler  that  the 
treaty-making  power  is  an  inherent 
power  that  is  not  governed  or  con- 
trolled at  all  by  the  Constitution  of 
the  United  States. 

"Mr.  BEVERIDGE.  Mr.  Presi- 
dent— 

' '  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Indiana? 

"Mr.  RAYNER.     Certainly. 

"Mr.  BEVERIDGE.  Might  not 
the  power  be  inherent  in  sovereignty 
and  at  the  same  time  be  limited  by 
the  Constitution  ? 

"Mr.  RAYNER.  Never.  It  can- 
not lie  in  grant  and  lie  in  sovereignty. 
It  must  either  lie  in  sovereignty  or  lie 
in  grant.  There  is  no  such  thing  as  a 
granted  power  under  the  Constitution 
carrying  within  its  terms  an  inherent 
and  sovereign  power.  I  utterly  deny 
the  suggestion  of  the  Senator  from 
Indiana.  Whatever  inherent  powers 
exist  have  been  merged  forever  in 
the  granted  powers  of  the  Constitu- 
tion. I  will  give  the  Senator  in  a 


155 


POSITION  OF  THE  UNITED  STATES. 


§  150 


order  of  the  board  of  education  directing  that  Japanese  children 
should  be  sent  to  the  Oriental  school,  and  directing  that  they 
should  be  excluded  from  the  ordinary  schools  provided  for  other 


few  moments  any  number  of  authori- 
ties on  that  from  the  Supreme  Court 
of  the  United  States  that  these  two 
powers  cannot  exist  together.  It 
must  be  either  one  or  the  other. 

"Mr.  BEVERIDGE.  That  was 
not  my  question,  although  I  am  happy 
to  hear  the  Senator  upon  that. 

"Mr.  RAYNER.  Then  I  misun- 
derstood the  Senator. 

"Mr.  BEVERIDGE.  The  question 
was,  Might  not  the  power  be  inherent 
in  sovereignty  and  at  the  same  time 
be  limited  by  the  prohibitions  of  the 
Constitution? 

"Mr.  RAYNER.  There  is  not  an 
inherent  power  in  the  Government  of 
the  United  States,  because  the  Gov- 
ernment of  the  United  States  is  not 
a  government  of  inherent  powers.  I 
deny  that  the  Government  of  the 
United  States  has  any  inherent  powers 
save  the  power  to  exist  and  to  per- 
petuate itself,  except  the  powers  con- 
tained in  the  Constitution  of  the 
United  States,  and  while  it  might  be 
inherent  and  still  limited,  the  fact  is 
it  is  not  inherent.  That  answers  the 
question. 

"Mr.  CARMACK.  Mr.  Presi- 
dent— 

' '  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Tennessee? 

"Mr.  RAYNER.     I  do. 

"Mr.  CARMACK.  I  wish  to  sug- 
gest to  the  Senator  from  Maryland 
that  each  of  the  States  prior  to 
the  formation  of  the  Constitution  of 
the  United  States  possessed  this 
treaty-making  power,  and  that  the 
General  Government  possesses  it  now 


only  by  reason  of  its  delegation  by 
the  States. 

"Mr.  CULBERSON.  The  States 
possessed  it  inherently. 

"Mr.  CARMACK.  They  possessed 
it  inherently;  and  the  General  Gov- 
ernment gets  it  by  delegation  from 
the  States. 

"Mr.  RAYNER.  I  was  coming  to 
that  proposition  in  a  moment.  I 
think  the  Senator  from  Tennessee 
states  that  proposition  a  little  too 
broadly — that  is,  that  the  States 
granted  to  the  United  States  all  the 
powers  they  possessed. 

"Mr.  CARMACK.  I  did  not  say 
that. 

'•Mr.  RAYNER.  I  beg  pardon. 
I  understood  the  Senator  to  say  that 
the  States  had  granted  to  the  United 
States  all  the  treaty-making  power. 

"Mr.  CARMACK.  No;  I  did  not 
mean  that;  but  all  the  powers  the 
General  Government  possesses  in  that 
respect  are  derived  from  the  grant 
by  the  States — 

"Mr.  RAYNER.     Undoubtedly. 

"Mr.  BEVERIDGE.  We  cannot 
hear  a  word  over  here  of  what  is 
being  said  on  the  other  side  of  the 
Chamber. 

"Mr.  CARMACK.  That  all  the 
treaty-making  power  was  in  the  States 
prior  to  the  formation  of  the  Con- 
stitution. Each  State  possessed  the 
treaty-making  power.  When  the 
Constitution  was  formed  the  States 
delegated  to  the  General  Government 
the  treaty-making  power,  and  the 
treaty-making  power  possessed  by  the 
General  Government  is  measured  by 
the  extent  of  that  delegation. 


§  150] 


CONSTRUCTION    OP    TREATIES,    ETC. 


156 


children,  constituted  a  deprivation  of  that  right,  liberty  or  privi- 
lege. 

But  putting  by  these  questions,  which  relate  only  to  the  mean- 
ing of  the  terms,  the  fundamental  question  arises:  If  the  treaty 


"Mr.  FULTON.  May  I  ask  the 
Senator  from  Tennessee  [Mr.  Car- 
mack]  a  question's? 

"The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Oregon  ? 

"Mr.  EAYNER.  I  wish  the  Sena- 
tor would  ask  me  the  question. 

"Mr.  FULTON.  Then  I  will  ask' 
the  Senator  if  that  delegation  of 
power  to  the  General  Government, 
when  exercisable,  is  nevertheless  not 
restricted  by  the  prohibition  on  the 
General  Government  contained  in  the 
Federal  Constitution? 

"Mr.  RAYNER.  Mr.  President,  I 
am  coming  to  the  argument  of  that 
question  in  a  moment  and  am  going 
to  quote  authorities  right  upon  that 
point.  I  hope  the  Senator  will  listen 
to  what  I  shall  say,  which,  I  think, 
will  answer  his  inquiry. 

"I  want,  first,  to  say  something  in 
reference  to  the  suggestion  of  the 
Senator  from  Tennessee  [Mr.  Car- 
mack].  Of  course,  the  Senator  from 
Tennessee  recollects  that  in  the  Arti- 
cles of  Confederation  it  was  provided 
that  no  treaty  should  be  made  unless 
nine  of  the  States  consented;  but  the 
suggestion  made  by  the  Senator  is 
absolutely  correct  as  to  the  proposi- 
tion upon  which  I  stand,  that  all 
powers  of  the  Constitution — the 
treaty-making  power  and  very  other 
power — are  derived  from  the  powers 
given  by  the  States.  Of  course,  I 
cannot  admit  that  they  have  given 
all  their  treaty-making  power,  be- 
cause they  have  only  given  the  treaty- 
making  power  in  connection  with  the 
delegated  power,  although  the  State 


itself  has  no  right  to  make  a  treaty 
under  the  Constitution.  While  I  can- 
not admit  that  the  States  gave  all 
their  treaty-making  power,  I  will  un- 
doubtedly admit  that  the  States  gave 
every  treaty-making  power  that  was 
necessary  for  the  purpose  of  carrying 
out  the  delegated  powers  of  the  Con- 
stitution, and  there  are  no  other 
powers  necessary. 

"Mr.  BEVERIDGE.  Will  the 
Senator  allow  me? 

1 '  Mr.  RAYNER.  In  a  moment.  I 
have  examined,  I  think,  every  treaty 
in  existence  between  this  Government 
and  every  other  government,  and  I 
can — though  I  do  not  propose  to  do  it 
now,  because  it  would  take  too  much 
time — but  I  can  now  show,  and  I  am 
willing  to  trace  every  subject-matter 
in  those  treaties  ever  made  with  any 
foreign  government  to  some  delegated 
power  contained  in  the  Constitution 
of  the  United  States.  I  challenge  the 
Senator  from  Indiana  to  point  me  to 
a  single  case  that  will  show  this  Gov- 
ernment has  ever  made  a  treaty  passed 
upon  by  the  courts,  and  held  to  be 
valid  by  the  courts,  that  was  not  for 
the  purpose  of  carrying  out  the  dele- 
gated powers  of  the  Constitution  con- 
ferred upon  the  United  States. 

"Mr.  BEVERIDGE.  Mr.  Presi- 
dent— 

"Mr.  RAYNER.  Let  me  give  one 
more  quotation,  and  then  I  will  yield. 
Section  1  of  Article  XIII  of  the 
amendments  to  the  Constitution  pro- 
vides that — 

' l  '  Neither  slavery  nor  involuntary 
servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have 


157 


POSITION  OF  THE  UNITED  STATES. 


[§  150 


was  to  be  construed  as  the  Japanese  government  contended, 
or  if  a  treaty  should  be  made  in  which  the  United  States  under- 
took by  direct  words  to  provide  for  the  admission  of  alien  chil- 


been  duly  convicted,  shall  exist  within 
the  United  States  or  any  place  subject 
to  their  jurisdiction. ' 

"Is  this  an  inherent  power ?  Is 
there  any  power  under  the  treaty- 
making  power,  except  the  power  to 
carry  out  the  delegated  powers  of  the 
United  States?  According  to  Mr. 
Butler  and  the  various  lecturers  upon 
the  revised  edition  of  the  United 
States  Constitution,  who  agree  with 
him,  it  is  claimed  that  the  power  is 
not  bound  by  the  limitations  of  the 
Constitution.  I  ask,  is  there  anyone 
here  who  believes  that  we  could  have 
put  a  provision  into  the  treaty  of 
Paris  providing  for  a  system  of  slav- 
ery in  the  Philippine  Islands?  If  it 
is  an  inherent  power,  if  it  does  not 
depend  upon  the  delegated  powers,  if 
it  is  a  sovereign  power  beyond  and 
above  the  Constitution,  then  we  can 
violate  every  article  in  the  Constitu- 
tion, and  there  would  be  no  inhibition 
upon  us  at  all  from  violating  this 
particular  provision  and  instituting 
or  continuing,  as  I  believe  we  have 
done  anyway  in  a  portion  of  the 
Philippine  Islands — the  Senator  from 
Indiana  will  know  more  about  that 
question  than  I  do — the  system  of 
slavery  that  exists  in  a  certain  por- 
tion of  those  islands. 

"Mr.  BEVEEIDGE.  I  want  to 
ask  the  Senator  a  question  before  he 
leaves  that  subject. 

'  <  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Indiana? 

"Mr.  RAYNER.     Certainly. 

"Mr.  BEVERIDGE.  It  was 
rather  an  interesting  statement  the 
Senator  made,  that  he  did  not  con- 


cede that  the  States  had  delegated 
away  all  of  their  treaty-making 
power.  Under  section  10  of  Article 
I  of  the  Constitution,  what  part  of 
the  treaty-making  power  does  the 
Senator  think  any  State  has? 

'  <  Mr.  RAYNER.  No  State  has  any 
treaty-making  power  except  as  pro- 
vided in  the  Constitution.  The  States 
have  delegated  to  the  Federal  authori- 
ties all  the  treaty-making  power  that 
it  is  necessary  for  the  Government  to 
have  in  order  to  carry  out  the  dele- 
gated powers  of  the  Constitution. 

"Mr.  BEVERIDGE.  I  understood 
the  Senator  to  say  a  moment  ago,  in 
answer  to  the  Senator  from  Tennessee 
[Mr.  Carmack],  that  he  did  not  con- 
cede that  the  States  had  parted  with 
all  of  their  treaty-making  powers.  I 
merely  call  his  attention  to  section  10 
of  Article  I  of  the  Constitution. 

"Mr.  RAYNER.  I  said  the  Con- 
stitution prohibits  the  States  from 
making  a  treaty. 

"Mr.  BEVERIDGE.     Certainly. 

"Mr.  RAYNER.  The  Federal 
Government  can  make  every  treaty, 
and  the  States  have  given  the  Govern- 
ment the  right  to  make  every  treaty 
that  is  necessary  to  carry  out  its 
delegated  powers,  and  you  must  take 
the  treaty-making  power  in  pari  ma- 
teria  with  the  delegated  powers  that 
are  given  to  the  Government.  I  can- 
not make  it  any  plainer  than  that. 
I  will  give  you  what  Mr.  Adams  says 
on  that  presently,  and  a  number  of 
your  friends  and  some  of  my 
friends — Mr.  Jefferson  and  others — 
and,  I  think,  you  will  agree  with  me. 
I  have  stated  the  proposition  almost 
in  their  identical  language.  I  say 


150] 


CONSTRUCTION    OF    TREATIES,    ETC. 


158 


dren  to  the  public  schools  without  discrimination,  had  the 
United  States  power  to*  make  such  a  treaty  which  should  be  para- 
mount to  the  laws  of  a  state?  It  was  contended  by  the  United 


that  the  States  have  given  to  the 
Federal  Government  the  right  to  make 
treaties,  but  they  have  only  given  it 
the  right  to  make  such  treaties  as 
carry  out  the  delegated  powers  of  the 
Constitution,  and  they  have  never 
given  it  the  right  to  make  any  treaty 
that  interferes  with  the  reserved  rights 
of  sovereign  States  acting  within 
their  own  borders. 

"Mr.  -BEVERIDGE.  Then  I  un- 
derstand the  Senator  does  not  con- 
tend that  the  States  have  reserved  to 
themselves  at  all  any  portion  of  the 
treaty-making  power.  That  is  made 
clear. 

1 '  Mr.  EAYNER.  Look  at  the  Con- 
stitution; that  settles  the  rights  of 
the  States.  The  Government  can 
make  any  treaty  that  carries  out  the 
purpose  of  the  Government.  My  ar- 
gument is  that  you  must  take  the 
treaty-making  powers  together  with 
the  delegated  powers,  and  you  can- 
not construe  one  independently  with 
the  jother. 

"Mr.  FORAKER.    Mr.  President — 

<  *  The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Ohio? 

"Mr.  RAYNER.     I  do. 

"Mr.  FORAKER.  I  only  want  to 
remark,  if  I  may  be  permitted  to  do 
so,  that  the  result  of  the  Senator's 
contention,  as  I  understand,  is  that 
that  part  of  the  old  treaty-making 
power  which  the  States  originally  pos- 
sessed has  become  dormant  or  has 
been,  by  the  provisions  of  the  Consti- 
tution, placed  in  abeyance,  does  not 
belong  to  anybody,  and  cannot  be  ex- 
ercised by  any  governmental  authority 
anywhere. 


"Mr.  RAYNER.  The  Senator 
from  Ohio  evidently  has  misunder- 
stood me.  I  will  state  the  proposition 
over  again. 

"Mr.  FORAKER.  I  hope  the  Sen- 
ator will  not — 

1 '  Mr.  RAYNER.  I  want  to  answer 
the  Senator's  observation.  There  is 
no  dormant  power  anywhere,  because 
the  Government  of  the  United  States 
contains  the  full  treaty-making  power 
for  the  purpose  of  carrying  out  all  of 
its  delegated  powers,  and  there  is  no 
dormant  power  any  place  under  the 
Constitution.  Every  power  under 
treaties  necessary  to  perfect  the  dele- 
gated powers  has  been  parted  with  by 
the  States,  and  the  States  have  parted 
with  their  treaty-making  power,  but 
I  repeat  again  that  the  treaty-making 
power  must  be  construed  in  pari  ma- 
teria  with  the  delegated  powers. 

"Mr.  BACON.  Will  the  Senator 
permit  me  a  moment? 

"The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Georgia? 

"Mr.  RAYNER.     Yes. 

"Mr.  BACON.  In  connection  with 
his  suggestion  as  to  whether  or  not 
the  powers  are  dormant,  I  wish  to  call 
the  attention  of  the  Senator  to  the 
fact  that  the  Constitution  does  con- 
template that  there  may  be  questions 
in  which  a  State  may  be  interested 
and  which  may  require  a  compact  or 
a  treaty  which  are  not  Federal  ques- 
tions; but  its  exercise  of  any  power 
in  connection  with  that  is  restricted 
and  made  dependent  upon  the  consent 
of  Congress.  I  will  read  the  section 
to  which  I  allude  as  illustrative  of  the 
question  propounded  by  the  Senator 


159 


POSITION  OP  THE  UNITED  STATES. 


[§  150 


States  that  the  treaty  with  Japan  did  not  declare  the  authority  of 
the  United  States  to  compel  a  state  to  establish  or  maintain  a  sys- 
tem of  public  schools  or  to  admit  alien  residents  to  its  schools,  but 


from  Ohio  in  connection  with  the  con- 
tention of  the  Senator  from  Mary- 
land. Article  1,  section  10,  para- 
graph 3,  of  the  Constitution,  to  be 
found  on  page  201  of  the  present  edi- 
tion of  the  Constitution  and  Manual, 
reads  as  follows: 

"  'No  State  shall,  without  the  con- 
sent of  Congress,  lay  any  duty  of  ton- 
nage, keep  troops,  or  ships  of  war  in 
time  of  peace,  enter  into  any  agree- 
ment or  compact  with  another  State, 
or  with  a  foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  ad- 
mit of  delay. ' 

"If  the  Senator  will  pardon  me 
just  a  moment,  the  point  in  connec- 
tion, I  think,  with  the  subject  under 
discussion  is  illustrative  of  the  fact 
that  it  was  in  the  contemplation  of 
the  Constitution  that  there  were  sub- 
jects-matter possible  of  compacts  or 
treaties  in  which  the  States  might  be 
directly  interested  and  which  did  not 
relate  to  the  General  Government  in 
its  Federal  capacity,  but  which  sub- 
jects were  in  their  treatment  by  the 
States  or  in  dealing  with  by  the 
States  so  restricted  that  there  could 
be  no  action  with  reference  thereto 
unless  Congress  should  consent;  in 
other  words,  that  there  were  questions 
which  could  be  and  properly  would  be 
the  subjects-matter  of  treaties  inter- 
esting the  States  directly,  but  which 
were  subsidiary  entirely  to  the  gen- 
eral power  of  the  Government  and  re- 
quired to  be  subject  to  its  supervision. 

"Mr.  RAYNER.  Mr.  President,  I 
was  coming  to  that  in  a  moment. 
While  I  am  quite  willing  to  submit 
to  any  interruptions,  I  think  there 


will  be  plenty  of  questions  to  ask 
me  when  I  get  into  the  cases. 

"Mr.  CULBERSON.  Will  the 
Senator  allow  me  just  to  read  another 
section  of  the  Constitution  which  will 
clear  up  this  particular  matter? 

"The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Texas? 

"Mr.  RAYNER.  I  was  going  to 
read  all  of  those  sections,  I  will  say 
to  the  Senator.  I  have  the  clause  in 
mind  to  which  he  refers. 

"Mr.  CULBERSON.  What  clause 
is  it? 

"Mr.  RAYNER.  There  are  three 
clauses  I  was  going  to  read  from  the 
Constitution.  The  first  clause  is  in 
relation  to  the  right  of  the  President 
and  the  Senate  to  make  a  treaty;  the 
second  clause  the  Senator  from  Geor 
gia  [Mr.  Bacon]  has  read,  and  the 
third  clause  is  the  clause  prohibiting 
a  State  from  making  a  treaty. 

"Mr.  CULBERSON.  That  is  the 
one  I  desired  to  read. 

"Mr.  RAYNER.  Do  not  misun- 
derstand my  purpose.  I  am  willing 
that  the  Senator  should  interrupt  me. 

"Mr.  CULBERSON.  It  is  very 
pertinent,  Mr.  President,  I  think,  in 
this  connection,  and  it  would  be  well 
to  read  it.  It  is  section  10,  Article  I, 
of  the  Constitution,  which  declares: 

"  'No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation. ' 

"Mr.  BEVERIDGE.  That  is  the 
section  to  which  I  specifically  called 
the  Senator 's  attention  a  moment  ago 
when  the  Senator  ventured  the  re- 
mark that  the  States  had  not  parted 
with  all  their  treaty-making  power. 


150] 


CONSTRUCTION    OF    TREATIES,    ETC. 


160 


it  was  asserted  by  the  United  States  that  it  could  by  treaty 
assure  to  the  resident  citizens  of  another  nation  a  treatment  and 
enjoyment  of  rights  and  privileges  equal  to  those  afforded  to  the 


"Mr.  RAYNER.  Do  not  let  the 
Senator  from  Indiana  misunderstand 
that  proposition.  Do  not  let  us  get 
him  wrong — 

"Mr.  BEVERIDGE.     No. 

"Mr.  EAYNEE.  Because  I  under- 
stand the  Senator  delivered  a  lecture 
on  that  subject,  and  while  I  am 
against  the  lecture,  I  do  not  want  the 
Senator  from  Indiana  to  misconstrue 
what  I  have  said  on  this  subject.  I 
say,  again  and  again,  the  States  have 
granted  to  the  Federal  Government 
all  their  treaty-making  powers  that 
are  necessary  to  carry  out  the  pur- 
pose of  Government  as  constituted  by 
the  Constitution.  That  is  the  exact 
language  of  Mr.  Jefferson,  and  I  can- 
not improve  on  it.  It  has  never  been 
improved  on,  except  by  Mr.  Butler, 
who  says  Jefferson  has  been  reversed. 
Jefferson  has  never  been  reversed  by 
anybody  except  Mr.  Butler,  and  I 
will  take  Jefferson  against  my  friend 
and  the  distinguished  reporter  of  the 
Supreme  Court  on  that  subject. 

'  *  This  brings  me  right  down  to  the 
precise  point  involved  in  this  discus- 
sion, and  that  is  to  the  tenth  article 
of  the  amendments,  which  reads  as 
follows : 

"  'ARTICLE  10.  The  powers  not 
delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  to  the  States, 
respectively,  or  to  the  people. ' 

"Have  we  a  right  to  violate  the 
Constitution  of  the  United  States  and 
incorporate  in  a  treaty  powers  not 
delegated  to  the  United  States,  pow- 
ers that  are  not  necessary  and  proper 
for  carrying  into  execution  the  pow- 


ers that  are  delegated,  and  barter 
away  the  privileges  and  rights  re- 
served to  the  States  respectively  by 
virtue  of  the  instrument  and  of  the 
tenth  amendment  thereto  that  I  have 
just  referred  to?  The  power  of  a 
State  to  regulate  its  public  school 
system  is  clearly  among  its  reserved 
powers.  Have  we,  therefore,  a  right 
to  provide  in  a  treaty  that  the  citizens 
of  foreign  lands  shall  possess  privi- 
leges in  the  public  schools  of  the 
States  that  are  prohibited  either  by 
the  Constitution  or  by  the  laws  of  the 
State  in  which  they  are  claimed?  If 
we  can,  in  defiance  of  the  laws  and 
constitution  of  a  State  incorporate 
any  such  provision  in  a  treaty  so  as 
to  bind  the  State,  then  we  can  un- 
doubtedly deprive  the  State  of  every 
reserved  right  that  it  possesses,  and 
rescind  and  annul  its  laws  and  its  con- 
stitution whenever  they  come  in  con- 
flict with  the  treaty-making  power. 
I  trample  upon  this  appalling  doc- 
trine. If  ever  such  a  deformity  as 
this  should  creep  into  our  judicial  de- 
cisions it  would  disfigure  the  Consti- 
tution to  such  an  extent  that  its 
features  would  no  longer  be  capable 
of  recognition.  It  would  annul  the 
charter;  it  would  frustrate  the  inten- 
tion of  the  men  who  framed  it;  it 
would  undermine  the  entire  frame- 
work of  the  instrument,  and  it  would 
convert  us  from  a  constitutional  gov- 
ernment into  a  dictatorship,  with  the 
States  in  abject  servitude  to  Federal 
power,  and  with  the  Executive  in  prac- 
tical control  of  the  destinies  of  the 
Republic. 


161 


POSITION  OF  THE  UNITED  STATES. 


[§  150 


citizens  of  any  other  foreign  nation.  Under  this  view,  if  a  state 
should  see  fit  to  extend  privileges  to  alien  residents  as  well  as 
to  citizen  residents,  the  state  will  not  be  allowed  to  discriminate 
against  the  citizens  of  that  country  with  which  the  treaty  has 


"THE  LEADING  AUTHORITIES  UPON  THE 
SUBJECT. 

"I  want  now  to  go  over  the  cases. 
I  know  it  is  monotonous  in  the  Sen- 
ate to  read  cases,  and  I  will  not  read 
them,  because  I  think  I  can  recollect 
them.  There  are  two  lines  of  cases. 
The  first  line  is  made  up  of  the  three 
cases  of  Ware  v.  Hylton  (3  Dallas, 
199),  [1  L.  ed.  568],  the  case  of 
Chirac  v.  Chirac,  from  my  own  State 
(2  Wheaton,  259),  [4  L.  ed.  234],  and 
a  case  in  Virginia,  Fairfax  v.  Hun- 
ter (7  Cranch,  603),  [3  L.  ed.  453]. 

"Ware  v.  Hylton  is  the  great  case 
that  is  quoted  against  the  proposition 
that  I  am  arguing  here  now.  That 
case  was  argued  by  Marshall.  It  was 
the  only  case  that  Marshall  ever 
argued  in  the  Supreme  Court  of  the 
United  States.  It  was  decided  by 
Justices  Chase,  Patterson,  Gushing, 
Wilson,  and  Iredell,  and  the  case 
covers  100  pages.  Let  me  see  if  I 
can  give  it  in  a  few  words. 

<  *  Virginia  had  confiscated  the  debts 
of  all  British  creditors.  After  the 
Revolution  Congress  made  a  treaty 
with  Great  Britain  providing  that 
British  subjects  should  have  the  right 
to  prosecute  their  claims  in  the  courts 
of  the  United  States  without  impedi- 
ments. There  was  a  conflict  between 
the  act  of  Virginia  confiscating  the 
debts  of  British  subjects  and  the 
treaty  of  the  United  States  giving 
British  subjects  without  impediment 
the  right  to  sue.  The  United  States 
courts  held  that  the  treaty  prevailed 
and  that  the  laws  of  the  State  of 
Virginia  were  in  conflict  with  it  and 
were  void.  I  give  you  that  case  in  a 
Treaties — 11 


very  short  compass.  I  want  to  take 
the  cases  of  Fairfax  v.  Hunter  and 
Chirac  v.  Chirac. 

"Mr.  MALLORY.  Mr.  Presi- 
dent— 

"The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  Florida? 

"Mr.  RAYNER.     Certainly. 

"Mr.  MALLORY.  In  the  case  of 
Hylton  v.  Ware  the  Supreme  Court 
expressly  declined  to  give  an  opinion 
as  to  whether  a  treaty  could  override 
the  Constitution. 

"Mr.  RAYNER.  I  am  coming  to 
that  in  a  minute.  I  have  not  finished 
with  Ware  v.  Hylton.  I  have  had 
Ware  against  Hylton  in  my  mind  for 
pretty  nearly  forty  years  now,  and  I 
am  going  to  finish  with  it  in  forty 
seconds,  if  I  can.  It  occupies  a  hun- 
dred pages  in  the  reports;  so  I  do 
not  intend  to  read  it. 

' 1 1  am  coming  now  to  the  other 
cases  in  the  first  line.  Maryland 
passed  a  law,  and  so  did  Virginia, 
that  aliens  could  not  hold  property. 
The  Government  made  a  treaty  with 
France  that  aliens  could  hold  prop- 
erty in  the  United  States.  The  laws 
of  Virginia  and  Maryland  came  into 
conflict  with  the  treaty,  and  the  Su- 
preme Court  of  the  United  States  held 
that  the  treaty  prevailed.  Those  are 
the  two  cases  that  are  cited  to  sus- 
tain the  proposition  that  Mr.  Butler 
is  contending  for  and  against  the 
proposition  that  I  am  advocating.  I 
want  to  say  one  word  about  those 
cases.  The  treaty  referred  to  in  Chirac 
v.  Chirac  and  in  Ware  v.  Hylton  was 
made  under  the  Articles  of  Confedera- 


150] 


CONSTRUCTION    OF    TREATIES,    ETC. 


162 


been  entered  into.  If  the  state  grants  privileges  to  the  citizens 
of  one  foreign  country,  it  cannot  deny  to  the  citizens  of  another 
country  such  privileges.  It  was  not  contended  that  the  state 
was  obligated  to  supply  education,  but  that  if  a  state  did  choose 


tion.  It  was  not  made  under  the  Consti- 
tution at  all.  If  you  will  look  at  the 
sixth  article  of  the  Constitution,  you 
will  see  that  it  ratifies  all  treaties 
that  have  been  made.  This  was  one 
of  the  treaties  that  it  ratified,  be- 
cause it  was  a  treaty  under  the  Arti- 
cles of  Confederation,  and,  further- 
more, Justice  Gushing,  in  uniting  in 
the  opinion  of  the  court,  says  that 
Virginia  was  a  party  to  the  treaty, 
and  being  a  party  to  the  treaty  she 
could  not  abrogate  her  own  act,  and 
she  was  estopped  by  having  partici- 
pated in  it  and  having  been  a  party 
to  it.  We  all  recollect  that  under  the 
Articles  of  Confederation  it  was  nec- 
essary that  nine  States  should  as- 
sent to  a  treaty  before  it  became  ef- 
fective. 

' '  Let  me  get  to  the  second  line  of 
cases,  which  the  Senators  from  the 
Pacific  coast  will  recollect  without  my 
going  into  details.  Both  California 
and  Oregon  passed  laws  in  reference 
to  this  question.  California  passed  a 
law  that  no  Chinese  laborers  should  be 
employed  by  any  corporation,  and 
Oregon  passed  a  law  that  Chinese  la- 
borers should  not  be  employed  upon 
the  public  works  of  that  State.  The 
question  came  up  under  the  Chinese 
treaty — and  the  cases  are  reported  in 
5  and  6  Sawyer ;  they  are  circuit  court 
cases — the  question  came  up  under 
the  Chinese  treaty,  Does  the  treaty 
prevail  or  does  the  law  of  California 
and  the  law  of  Oregon  prevail?  Is 
the  law  of  California  a  valid  law 
which  provides  that  no  Chinese  la- 
borer shall  be  employed  by  any  cor- 
poration in  the  State  of  California? 


Is  the  Oregon  law  a  valid  law  which 
provides  that  no  Chinese  laborer  shall 
be  employed  upon  any  public  works 
in  Oregon?  The  Supreme  Court  said 
no.  Why?  Because,  they  held,  the 
treaty  having  provided  that  Chinese 
at  that  time  should  have  the  right  to 
live  here,  that  the  right  lo  live  here 
carried  with  it  the  right  to  labor 
here;  that  a  man  cannot  live  without 
earning  a  living;  that  if  we  had  the 
right  by  treaty  to  give  them  the  privi- 
lege of  coming  here,  the  treaty  by 
intendment  and  construction  carried 
with  it  their  right  to  earn  a  living; 
but  the  court  never  touched  upon  the 
reserved  rights  of  the  States. 

"Now,  I  want  to  take  up  the  last 
case  I  am  going  to  quote  on  the  other 
side  of  this  subject,  because  I  want 
to  argue  it  fairly.  I  come  now  to 
the  decision  in  92  United  States,  that 
most  unfortunate  decision  of  the  Su- 
preme Court  of  the  United  States.  It 
does  not  trench  at  all  upon  the  argu- 
ment I  am  now  making.  California 
provided  that  no  woman  of  ill-repute 
should  come  into  the  ports  of  Cali- 
fornia. That  is  the  Freeman  case 
(92  U.  S.).  What  did  the  Supreme 
Court  decide  there?  As  the  Senator 
from  Wisconsin  knows,  they  did  what 
they  had  never  done  before.  They 
went  back  of  that  statute.  They 
never  construed  the  statute  according 
to  the  language  of  the  statute,  but 
they  held  that  California  intended,  by 
that  provision  of  her  law,  to  exclude 
Chinese  women,  although  there  was 
not  a  word  said  about  Chinese  women 
or  women  of  any  other  race.  It  was 
one  of  those  peculiar  cases  in  which 


163 


POSITION    OF    THE    UNITED    STATES. 


[$ 


to  supply  education  as  a  governmental  function,  it  could  not 
discriminate,  and  that  while  the  state  was  at  liberty  to  maintain 
a  school  system  or  not,  yet  if  it  did  provide  such  a  school  system, 
the  schools  of  which  alien  children  generally  were  permitted  to 


the  Supreme  Court  of  the  United 
States  has  gone  into  the  motives  of 
a  State  legislature  in  order  to  de- 
termine the  validity  of  her  statutes. 
But,  Mr.  President,  when  they  come 
to  decide  that  case  they  never  touched 
upon  the  reserved  rights  of  the  State. 
If  you  will  examine  the  Freeman 
case  you  will  see  that  the  Supreme 
Court  held  in  that  case  that  it  was  a 
regulation  of  commerce,  and  that  Cali- 
fornia had  passed  a  statute  violat- 
ing that  article  of  the  Constitution 
which  gives  the  Congress  of  the 
United  States  the  right  to  regulate 
commerce  with  foreign  nations. 

"Now  I  want  to  give  my  cases.  I 
could  give  numbers  of  other  cases, 
but  before  I  give  my  cases,  I  wish  to 
read  one  or  two  extracts  from  this 
author  whom  I  have  quoted  here  upon 
several  occasions,  to  show  how  he  con- 
tradicts himself  upon  this  point,  and 
how,  when  he  is  arguing  against  him- 
self, he  is  finally  forced  to  the  con- 
clusion that  he  has  made  a  mistake, 
and  that  you  can  not  make  a  treaty 
which  interferes  with  the  reserved 
rights  of  the  State;  and  the  only 
question  to  his  mind  is  whether  it  is 
a  reserved  right  of  the  State.  If  it 
is  once  settled  that  it  is,  when  you 
once  admit  it  is  a  reserved  right  of 
the  State,  then  it  cannot  come  within 
the  treaty-making  power,  because  you 
can  no  more  violate  article  10  of  the 
Constitution  than  you  can  violate  any 
other  article  of  the  Constitution  in 
connection  with  its  inhibitions  and 
limitations. 

"Let  me  read  a  very  peculiar  pas- 
sage from  this  author  against  him- 


self. I  am  quoting  now  from  a  hos- 
tile authority  to  substantiate  the 
propositions  for  which  I  am  contend- 
ing, because  1  have  the  most  eminent 
authorities  in  the  country  to  sustain 
the  propositions  upon  which  I  stand. 

* '  I  read  from  page  31  of  Butler  on 
the  Treaty-Making  Power,  a  most  in- 
teresting book.  If  it  were  not  all 
wrong  on  this  point  it  would  be  the 
most  valuable  book  upon  the  subject 
that  we  have  in  the  United  States. 
Upon  page  31,  section  344,  of  this 
work  we  find  the  statement  which  I 
shall  read,  made  by  my  friend,  Mr. 
Butler,  whom  I  know  personally  very 
well,  and  of  whom  I  think  very 
highly,  and  I  do  not  intend  that  any 
criticism  of  mine  upon  his  work  shall 
in  the  slightest  degree  reflect  upon 
his  great  industry  and  talent  as  a  law- 
yer and  as  an  author.  He  repre- 
sents the  same  school  that  my  friend 
the  Senator  from  Indiana  represents 
— the  school  that  believes  that  we  are 
a  government  of  inherent  sovereignty. 

' '  '  SEC.  344.  State  statutes  upheld; 
Chinese  laundry  cases. — It  must  not  be 
presumed,  however,  that  the  Federal 
courts  have  always  interfered  to  pre- 
vent State  action  in  regard  to  mat- 
ters which  are  wholly  under  their  con- 
trol, and  that  they  have  used  the 
treaty-making  power  as  an  excuse  for 
interfering  in  their  internal  af- 
fairs. In  1885,  the  same  learned  jus- 
tice of  the  Supreme  Court  who  had 
declared  the  San  Francisco  queue  or- 
dinance invalid  sustained  a  municipal 
ordinance  of  San  Francisco  imposing 
certain  regulations  and  restrictions 
upon  laundries,  and  which  was  as  un- 


§  150] 


CONSTRUCTION  OF  TREATIES,  ETC. 


164 


attend,  it  could  not  exclude  the  alien  children  of  any  particular 
nation  enjoying  treaty  rights.  In  other  words,  the  provision  of 
the  treaty  placed  no  obligation  upon  the  state,  was  in  no  sense 
compulsory,  but  was  negative  and  prohibitory. 


doubtedly  aimed  directly  at  the  Chi- 
nese as  the  queue  ordinance  had  been. 
The  Supreme  Uourt  held,  however, 
that  the  regulation  of  laundries  was  a 
matter  which  came  within  the  right 
of  the  municipality,  and  that  treaty 
stipulations  as  to  lights  to  live  and 
labor  should  not  be  used  to  prevent 
the  proper  enforcement  of  municipal 
regulations. ' 

"Upon  page  56  we  find  the  follow- 
ing statement: 

1 1  l  The  Supreme  Court  has,  in  re- 
gard to  treaties,  as  it  has  in  regard 
to  Federal  statutes,  ever  kept  in  view 
the  exclusive  right  of  States  to  regu- 
late their  internal  affairs.' 

' '  Upon  page  350,  section  455,  we 
find  this  remarkable  statement  from 
the  same  author,  which  seems  to  be  in 
direct  conflict  with  almost  every  other 
statement  that  he  has  made  in  this 
valuable  work  upon  this  subject: 

"  'SEC.  455.  Power  must  be  lim- 
ited, as  no  unlimited  powers  exist.' 

' i  He  has  been  arguing  in  454  sec- 
tions that  unlimited  powers  exist,  and 
when  he  comes  to  the  four  hundred 
and  fifty-fifth  section  he  says  the  pow- 
ers must  be  limited,  as  no  unlimited 
powers  exist;  and  in  order  to  apol- 
ogize for  the  remarks  he  has  made 
in  the  antecedent  sections  he  goes 
on  to  say: 

f '  '  After  perusing  the  foregoing 
chapters  the  reader  may  think  he  is 
justified  in  presuming  that  the  au- 
thor does  not  consider  that  there  are 
any  limitations  whatever  on  the  treaty- 
making  power  of  the  United  States, 
either  as  to  the  extent  to  or  subject- 


matter  over  which  it  may  be  exer- 
cised. ' 

' ( I  should  think  we  were  justified 
in  presuming  so  when  he  has  argued 
that  question  in  the  sections  which 
have  preceded  this  section. 

' '  Then  says  the  author : 

"  'Such,  however,  is  not  the  case; 
the  fact  that  the  United  States  is  a 
constitutional  government  precludes 
the  idea  of  any  absolutely  unlimited 
power  existing.' 

"He  has  never  said  that  before. 
He  continues: 

' '  '  The  Supreme  Court  has  declared 
that  it  must  be  admitted  as  to  every 
power  of  society  over  its  members 
that  it  is  not  absolute  and  unlimited; 
and  this  rule  applies  to  the  exer- 
cise of  the  treaty-making  power,  as  it 
does  to  every  other  power  vested  in 
the  Central  Government.  The  ques- 
tion is  not  whether  the  power  is  lim- 
ited or  unlimited,  but  at  what  point 
do  the  limitations  begin.' 

' '  If  the  author  had  said  that  in  the 
first  section,  it  would  have  saved  him 
the  trouble  of  writing  the  greater 
part  of  his  book. 

"Now,  Mr.  President,  let  me  come 
to  the  citation  of  my  cases,  and  I 
will  finish  them  very  briefly,  al- 
though it  is  a  subject  very  difficult  to 
cover  in  the  space  I  am  devoting  to  it. 
I  have  the  cases  where  this  identical 
question  has  arisen — where  the  Su- 
preme Court  itself,  and  in  approval 
of  State  authorities,  has  held  not 
only  that  a  reserved  right  of  the 
State  does  not  come  within  the  treaty- 
making  power,  but  has  held  that  this 


165 


VIEWS  OF  MB.  LEWIS. 


[§  151 


§  151.  Views  of  Mr.  Lewis.— Mr.  William  Draper  Lewis,  of 
the  University  of  Pennsylvania,  said  that  the  proper  construction 
of  this  treaty  as  applied  to  the  action  taken  by  the  board  of 
education  of  San  Francisco  gave  rise  to  several  questions.  Is 


right  of  a  State  to  admit  a  particu- 
lar class  of  people  into  its  educa- 
tional institutions  is  a  reserved  right 
of  the  State,  and  the  Government  has 
no  control  over  it  whatever,  either  in 
the  treaty-making  power  or  in  stat- 
utes. 

"Let  me  read  an  extract  from  the 
case  of  Geofroy  v.  Riggs  (133  U.  S. 
267),  [10  Sup.  Ct.  Eep.  295,  33  L.  ed. 
642],  as  follows: 

' '  '  The  treaty  power,  as  expressed 
in  the  Constitution,  is  in  terms  un- 
limited except  by  those  restraints 
which  are  found  in  that  instrument 
against  the  action  of  the  Government 
or  of  its  departments,  and  those  aris- 
ing from  the  nature  of  the  Govern- 
ment itself  and  of  that  of  the  States. ' 

"In  5  California,  381,  in  the  case 
of  The  People  v.  Gerke,  the  court,  in 
its  opinion,  said: 

' '  '  The  language  which  grants  the 
power  to  make  treaties  contains  no 
words  of  limitation;  it  does  not  fol- 
low that  the  power  is  unlimited.  It 
must  be  subject  to  the  general  rule, 
that  an  instrument  is  to  be  con- 
strued so  as  to  reconcile  and  give 
meaning  and  effect  to  all  its  parts. 
If  it  were  otherwise,  the  most  im- 
portant limitation  upon  the  powers  of 
the  Federal  Government  would  be  in- 
effectual, and  the  reserved  rights  of 
the  States  would  be  subverted.  This 
principle  of  construction,  as  applied, 
not  only  in  reference  to  the  Consti- 
tution of  the  United  States,  but  par- 
ticularly in  the  relation  of  all  the 
rest  of  it  to  the  treaty-making  grant, 
was  recognized  both  by  Mr.  Jeffer- 
son and  John  Adams,  the  two  leaders 
of  opposite  schools  of  construction.7 


"I  now  refer  to  the  case  of  The 
People  v.  Gallagher,  in  93  New  York 
Reports,  page  438  [45  Am.  Rep.  232], 
and  to  the  case  of  Roberts  v.  City  of 
Boston,  5  Gushing,  198,  both  of  which 
cases  have  been  cited  with  approval 
by  the  Supreme  Court  of  the  United 
States,  and  in  which  the  question 
whether  a  separation  of  the  races  in 
the  public  schools  was  a  violation  of 
the  'privileges  and  immunities'  guar- 
anteed by  the  Constitution  came  be- 
fore the  courts.  I  quote  from  the 
first  case: 

"  'The  school  authorities  have 
power,  when,  in  their  opinion,  the  in- 
terests of  education  will  be  promoted 
thereby,  to  establish  schools  for  the 
exclusive  use  of  colored  children;  and 
when  such  schools  are  established  and 
provided  with  equal  facilities  for  edu- 
cation, they  may  exclude  colored  chil- 
dren from  the  schools  provided  for 
the  whites.' 

"  'The  establishment  of  such  sepa- 
rate schools  for  the  exclusive  use  of 
the  different  races  is  not  an  abridg- 
ment of  the  "privileges  or  immuni- 
ties ' '  preserved  by  the  fourteenth 
amendment  of  the  Federal  Constitu- 
tion, nor  is  such  a  separation  a  de- 
nial of  the  equal  protection  of  the 
laws  given  to  every  citizen  by  said 
amendment. ' 

"  'It  seems  that  the  "privileges 
and  immunities"  which  are  protected 
by  said  amendment  are  those  only 
which  belong  to  the  citizen  as  a  citi- 
zen of  the  United  States — 

"I  beg  my  friends  to  draw  the 
distinction  here  between  a  citizen  of 
the  United  States  and  a  citizen  of  a 
State,  because  a  man  may  be  a  citi- 


§  151] 


CONSTRUCTION  OF  TREATIES.  ETC. 


166 


the  right  of  the  inhabitants  of  San  Francisco  to  have  their  chil- 
dren attend  the  public  schools  a  right  of  "residence"  within  the 
meaning  of  that  word  as  used  in  the  treaty?  Does  the  San  Fran- 
cisco School  Board  deny  to  Japanese  residents  the  same  "privi- 


zen  of  the  United  States  without  be- 
ing a  citizen  of  any  State. 

"  f — those  which  are  granted  by  a 
State  to  its  citizens  and  which  depend 
solely  upon  State  laws  for  their 
origin  and  support  are  not  within  the 
constitutional  inhibition  and  may  law- 
fully be  denied  to  any  class  or  race 
by  the  State  at  its  will  and  discre- 
tion. 

"  'It  seems  also  that  as  the  privi- 
lege of  receiving  an  education  at  the 
expense  of  the  State  is  created  and 
conferred  only  by  State  laws,  it  may 
be  granted  or  refused  to  any  indi- 
vidual or  class  at  the  pleasure  of  the 
State. ' 

"Mr.  FULTON.  May  I  ask  the 
Senator  from  Maryland  a  question? 

"Mr.  EAYNER.     Certainly. 

"Mr.  FULTON.  I  wish  to  say 
first  that  I  am  in  accord  with  the 
Senator's  view — that  the  Federal 
Government  cannot  by  treaty  invade 
the  right  of  a  State  to  regulate  its 
own  school  system.  But  a  question 
has  occurred  to  my  mind,  and  I  wish 
to  ask  the  Senator  from  Maryland  if 
it  has  occurred  to  his;  and  if  so, 
whether  he  has  reached  a  conclusion 
on  it.  It  is  this:  Can  the  Congress 
and  the  President,  in  the  exercise  of 
the  treaty-making  power,  invade  the 
rights  of  a  State — what  we  will  term 
the  'reserved'  rights  of  a  State — to 
any  greater  extent  than  it  can  by  di- 
rect legislation?  We  will  concede,  I 
think,  for  instance,  that  Congress  may 
not  by  direct  legislation  change  the 
laws  of  a  State  providing  who  may 
hold  property  within  the  State — 


who  may  own  real  estate.  That  is  a 
matter  concerning  which  a  State  or- 
dinarily would  have  the  right  to  leg- 
islate, and  concerning  which  the  Con- 
gress could  not  interfere  by  direct 
legislation.  Yet  the  Supreme  Court 
has  held  that  by  a  treaty  a  law  of 
a  State  in  that  regard  may  be  an- 
nulled. 

"Now,  then,  the  question  which 
has  arisen  in  my  mind  is  to  what  ex- 
tent may  the  treaty-making  power 
invade  the  rights  of  a  State  beyond 
what  Congress  may  invade  them  by 
legislation,  or  can  it? 

"Mr.  EAYNER.  And  that,  Mr. 
President,  is  not  only  a  very  pertinent 
question,  but  it  is  a  question  that 
would  present  a  great  deal  of  dif- 
ficulty in  its  solution  if  certain  cases 
in  the  Supreme  Court,  which  I  am 
going  to  quote,  did  not  fully  cover  it. 
That  is  the  point  I  am  coming  to, 
Can  the  United  States  by  treaty  go 
beyond  the  delegated  powers  of  the 
Constitution?  Admitting  it  cannot 
violate  the  Constitution,  is  the  treaty- 
making  function  circumscribed  by  the 
Constitution?  The  first  case  that 
arose  was  a  California  case,  which  was 
quoted  by  the  Supreme  Court  with  ap- 
proval. It  was  The  People  ex  rel. 
the  Attorney-General  v.  Nagle. 

"The  State  of  California,  as  the 
Senator  from  California  will  remem- 
ber, had  imposed  a  license  upon  for- 
eigners engaged  in  working  gold 
mines  in  that  State,  and  the  question 
arose  whether  California,  under  the 
treaty,  had  the  right  to  pass  such 
a  law.  . 


167 


DENIAL   OF  SAME   PRIVILEGES. 


[§  151 


leges,  liberties  and  rights"  of  public  school  education  as  it  gives 
to  her  own  citizens  or  the  citizens  of  other  countries,  being  resi- 
dents of  San  Francisco,  by  requiring  Japanese  residents  to  send 
their  children  to  a  separate  school? 


"OPINION   OF  THE   COURT. 

''In  addition  to  this  case,  I  want 
to  refer  to  the  important  eases  in 
119  Federal  Reporter,  page  381,  and 
in  5  Howard,  page  613,  [12  L.  ed. 
279],  to  the  opinion  of  Justice 
Daniel,  which  is  concurrent  upon  the 
proposition  from  which  I  quote,  and 
which  reads  as  follows: 

1 '  '  This  provision  of  the  Constitu- 
tion, it  is  to  be  feared,  is  sometimes 
applied  or  expounded  without  those 
qualifications  which  the  character  of 
the  parties  to  that  instrument,  and  its 
adaptation  to  the  purposes  for  which 
it  was  created,  necessarily  imply. 
Every  power  delegated  to  the  Federal 
Government  must  be  expounded  in 
coincidence  with  a  perfect  right  in 
the  States  to  all  that  they  have  not 
delegated;  in  coincidence,  too,  with 
the  possession  of  every  power  and 
right  necessary  for  their  existence  and 
preservation;  for  it  is  impossible  to 
believe  that  these  ever  were,  in  in- 
tention or  in  fact,  ceded  to  the  Gen- 
eral Government.  Laws  of  the 
United  States,  in  order  to  be  binding, 
must  be  within  the  legitimate  powers 
vested  by  the  Constitution.  Treaties, 
to  be  valid,  must  be  made  within  the 
scope  of  the  same  powers,  for  there 
can  be  no  "authority  of  the  United 
States,"  save  what  is  derived  medi- 
ately or  immediately,  and  regularly 
and  legitimately,  from  the  Constitu- 
tion. A  treaty,  no  more  than  an  or- 
dinary statute,  can  arbitrarily  cede 
away  any  one  right  of  a  State  or  of 
any  citizen  of  a  State.' 

"I  wish  to  refer  now  to  a  case  in 
118  Federal  Keporter.  This  was  a 


case  where  a  Chinese  girl  tiled  a  peti- 
tion for  a  mandamus  against  the  pub- 
lic school  trustees  of  San  Francisco, 
I  think,  asking  admission  into  the 
white  school,  it  was  denied.  The 
case  went  to  the  United  States  court, 
and  the  court  said  that  she  had  no 
right  to  be  admitted  into  the  white 
public  schools  of  California;  that 
there  were  schools  set  apart  for  her, 
and  she  could  go  into  those  schools. 
Is  it  not  a  strange  thing  that  Cali- 
fornia can  pass  a  law  providing  that 
the  Chinese  children  who  live  there 
shall  be  separated  in  the  schools,  and 
cannot  pass  a  law  that  the  Chinese 
children  who  do  not  live  there,  those 
who  shall  come  there  hereafter,  shall 
be  not  separated,  but  that  they  must 
be  put  in  the  white  schools? 

"Mr.   FLINT.     Mr.   President— 

"The  VICE-PRESIDENT.  Does 
the  Senator  from  Maryland  yield  to 
the  Senator  from  California? 

"Mr.   EARNER.     Certainly. 

"Mr.  FLINT.  The  language  of 
the  statute  is  'Mongolian/  not  'Chi- 
nese. ' 

"Mr.  RAYNER.  Yes,  Mongo- 
lian. ' 

"Mr.  FLINT.  It  includes  Japan- 
ese? 

"Mr.  RAYNER.  The  Japanese 
hold  that  they  are  not  Mongolians; 
but  outside  of  that,  I  am  on  a  propo- 
sition of  law  now.  The  Senate  will 
sustain  me  in  the  proposition,  without 
quoting  the  cases  that  the  court  has 
absolutely  decided  that  children  of 
Chinese  parents  have  no  right  to  go 
into  the  same  schools  with  white 
children  in  California;  and  that 


151] 


CONSTRUCTION  OF  TREATIES,  ETC. 


168 


He  then  said:  "This  question  may  be  affected  by  the  location 
of  and  accommodation  in  the  separate  Mongolian  school  of  San 
Francisco.  We  understand  that  there  is  but  one  Mongolian  pub- 
lic school  in  the  city. 

"If  it  should  be  decided  that,  within  the  meaning  of  the 
treaty,  a  right  to  attend  a  public  school  is  a  right  of  residence, 


has  been  approved  of  by  the  Su- 
preme Court  of  the  United  States. 
How  is  it  possible  to  hold  that 
the  Chinese  children  who  live  there 
can  be  separated  and  segregated,  but 
that  children  living  in  China  or  Japan 
who  may  come  here  cannot  be  separ- 
ated and  segregated,  but  must  go 
into  the  white  schools? 

''Let  me  get  back  again  now  to 
what  Jefferson  said — it  is  just  three 
lines.  He  said  it  long  ago,  but  not 
too  long  ago  to  be  forgotten,  and  this 
is  the  proposition  on  which  Mr.  But- 
ler says  Mr.  Jefferson  has  been  re- 
versed : 

•*  'By  the  general  power  to  make 
treaties,  the  Constitution  must  have 
intended  to  comprehend  only  those  ob- 
jects which  are  usually  regulated  by 
treaty  and  cannot  be  otherwise  regu- 
lated. It  must  have  meant  to  except 
out  of  these  the  rights  reserved  to  the 
States,  for  surely  the  President  and 
Senate  cannot  do  by  treaty  what  the 
whole  Government  is  interdicted  from 
doing  in  any  way. ' 

"That  is  a  concise  but  a  stately 
statement  of  the  proposition  upon 
which  I  have  planted  myself  to-day. 

' '  In  addition  to  the  cases  that  I 
have  cited,  and  in  closing  the  entire 
reference,  I  desire  to  now  advert  to 
several  diplomatic  precedents  of  great 
value  upon  this  subject.  The  first 
incident  took  place  during  the  admin- 
istration of  Mr.  Marcy  over  the  De- 
partment of  State,  and  I  quote  his 
opinion  in  the  matter: 


' '  '  [Mr  Marcy,  Secretary  of  State, 
to  Mr.  Mason,  minister  to 
France,  September  11,  1854.] 
"  'It  is  not,  as  you  will  perceive 
by  examining  Mr.  Drouyn  de 
L'Huys'  dispatch  to  the  Count  de 
Sartiges,  the  application  of  the  ' '  prin- 
ciple" to  the  particular  case  of  M. 
Dillon,  which  is  to  be  disavowed,  but 
the  broad  and  general  proposition  that 
the  Constitution  is  paramount  in  au- 
thority to  any  treaty  or  convention 
made  by  this  Government.  This  prin- 
ciple, the  President  directs  me  to  say, 
he  cannot  disavow,  nor  would  it  be 
candid  in  him  to  withhold  an  expres- 
sion of  his  belief  that  if  a  case 
should  arise  presenting  a  direct  con- 
flict between  the  Constitution  of  the 
United  States  and  a  treaty  made  by 
authority  thereof,  and  be  brought  be- 
fore our  highest  tribunal  for  adjudi- 
cation, the  court  would  act  upon  the 
principle  that  the  Constitution  was 
the  paramount  law. ' 

' '  The  second  incident  also  took 
place  during  the  administration  of 
Mr.  Marcy: 

' '  '  [Mr.  Marcy,  Secretary  of  State, 
to  Mr.  de  Figaniere,  Portuguese 
charge  d'affaires,  March  27, 
1855.] 

"  'Although  the  language  of  Ar- 
ticle II  of  the  consular  convention 
between  the  United  States  and  France 
of  February  23,  1853,  exempting  con- 
suls from  compulsory  process,  is  gen- 
eral and  unrestricted  in  terms,  "yet 
it  is  here  held  that  it  does  not  take 
away  the  right  which  the  defendant 


169 


POLICE   REGULATIONS. 


[§  151 


and  that  the  action  of  the  San  Francisco  School  Board  is  a  denial 
of  'the  same  privileges,  liberties  and  rights'  in  respect  to  public 
school  education  which  are  granted  to  other  residents,  the  ques- 
tion would  remain,  whether  the  act  of  the  San  Francisco  au- 
thorities could  be  justified  under  the  clause  which  excepts  'laws, 
ordinances  and  regulations  with  regard  to  police  and  public  se- 
curity.' " 


in  a  criminal  prosecution  has  to  re- 
sort to  such  process  to  procure  the 
witnesses  in  his  favor,  for  this  right 
is  secured  to  him  by  the  express  lan- 
guage of  the  United  States  Constitu- 
tion. "  That  instrument  is  para- 
mount in  authority  to  the  laws  of 
Congress  or  of  any  of  the  States,  and 
to  all  treaty  stipulations.' 

"At  a  very  late  date  the  question 
arose  with  the  Department  of  State, 
presided  over  by  Secretary  Hay,  and 
I  read  the  conclusion  that  the  Secre- 
tary reached  upon  this  subject,  quot- 
ing from  Mr.  Moore's  valuable  treat- 
ise upon  international  law: 

"  'July  19,  1899,  the  Department 
of  State  declined  a  proposal  of  the 
British  Government  to  negotiate  a 
treaty  to  prevent  discriminatory  legis- 
lation by  the  several  States  of  the 
United  States,  subjecting  foreign  fire- 
insurance  companies  to  higher  taxes 
than  domestic  companies.  The  reason 
given  for  the  declination  was  that  the 
negotiation  of  such  a  treaty  would 
probably  be  futile  on  account  of  the 
indisposition  of  the  people  to  permit 
any  encroachment  upon  the  exercise 
of  powers  of  the  local  legislation. ' 

"ARE  THE  PUBLIC  SCHOOLS  OF  CALI- 
FORNIA THE  PROPERTY  OF  CALIFOR- 
NIA OR  OF  THE  UNITED  STATES? 

"Is  it  necessary  for  me  to  say  any- 
thing further?  Are  the  public  schools 
of  California  the  property  of  Cali- 
fornia or  the  property  of  the  United 
States?  Does  the  public  school  sys- 


tem of  California  or  of  any  other 
State  belong  to  the  State  that  cre- 
ates and  supports  it,  or  to  the  Gov- 
ernment that  has  neither  created  nor 
sustained  it?  Does  this  subject  come 
within  the  treaty-making  power? 
Does  it  come  within  the  delegated 
powers  of  the  Constitution?  Has 
the  United  States  the  right  to  incor- 
porate into  a  treaty  a  provision  that 
the  States  shall,  out  of  their  own 
treasury,  educate  the  citizens  of  for- 
eign governments?  Is  there  any 
power  in  any  treaty  to  deprive  any 
of  the  States  of  their  reserved  right 
to  regulate  and  manage  their  local 
affairs  according  to  their  own  usages 
and  statutes?  Are  not  foreign  gov- 
ernments that  deal  with  us  presumed 
to  know  the  nature  and  the  character 
of  our  institutions,  and  is  not  this 
principle  fully  established  by  an  un- 
broken line  of  precedents  passed  upon 
by  the  State  Department  from  time 
immemorial?  There  can  be  but  one 
response  to  all  these  inquiries,  in  my 
opinion,  and  as  the  result  of  the  in- 
vestigation that  I  have  given  to  this 
subject  I  now  assert,  in  the  language 
of  the  resolutions,  that  the  public 
school  systems  of  the  States  belong 
to  the  States  along  with  all  of  their 
reserved  rights;  that  the  Government 
has  no  power  whatever  to  meddle 
with  them  or  control  them,  and  it  was 
the  duty  of  the  President  to  have  in- 
formed the  Government  of  Japan  as 
soon  as  the  question  arose,  no  matter 
what  his  feelings  or  sentiments  may 


151] 


CONSTRUCTION  OF  TREATIES,  ETC. 


170 


Speaking  of  the  constitutionality  of  the  treaty,  he  said:  "If 
the  treaty-making  power  of  the  Federal  Government  is  limited, 
and  if  this  treaty  in  conferring  on  Japanese  residents  in  the 
United  States  the  right  to  attend  the  public  schools  of  a  State, 
exceeds  those  limits,  the  Treaty  in  this  respect  is  unconstitu- 


have  been,  that  the  subject  was  en- 
tirely without  the  domain  of  his  jur- 
isdiction. 

"THE  CONCLUSIONS  i  HAVE  REACHED. 
"I  shall  now,  in  conclusion,  sum- 
marize the  results  that  I  have  reached. 
I  am  not  here  for  the  purpose  of 
denying  to  the  Government  the  power 
to  cover  by  treaty  every  right,  priv- 
ilege, and  concession  that  comes 
within  the  treaty-making  power  in 
order  to  carry  out  the  objects  and 
purposes  of  this  Government  as  de- 
fined in  the  Constitution.  I  do  not 
for  a  moment  set  up  the  reserved 
rights  of  the  States  against  the  exer- 
cise of  any  constitutional  power  that 
may  be  incorporated  in  a  treaty.  I 
admit  that  the  United  States  can 
enter  into  any  treaty  with  any  for- 
eign power  in  reference  to  any  sub- 
ject embraced  in  the  Constitution. 
I  deny,  however,  that  it  possesses  any 
inherent  right  to  make  a  treaty,  and 
I  claim  that  the  treaty-making  power 
lies  in  grant  and  not  in  sovereignty 
and  must  be  construed  in  pari  ma- 
teria  with  all  the  other  clauses  of 
the  instrument  that  creates  it,  and 
that  in  interpreting  the  treaty-mak- 
ing power  we  must  be  governed 
by  the  principles  of  international  law, 
its  usages  and  its  practices,  as  those 
principles,  usages,  and  practices  ap- 
pertain to  our  form  of  constitutional 
government.  I  utterly  deny  that  we 
have  any  right  to  make  a  treaty  that 
violates  the  Constitution,  or  deprives 
the  States  of  their  reserved  rights  to 
conduct  their  local  affairs  over  which 


the  Federal  Government  has  no  jur- 
isdiction, and  which  they  alone  have 
the  right  to  administer  according  to 
their  own  constitutions  and  statutes. 

"THE     RESERVED     RIGHTS     OF     THE 

STATES. 

"As  I  said  at  the  commencement, 
this  is  a  grave  and  profound  question 
that  we  have  encountered.  The  local 
problem  sinks  into  insignificance  be- 
side the  great  principle  that  is  here 
involved.  It  affords  a  timely  warn- 
ing and  admonition  that  at  any  time, 
through  the  treaty-making  power,  a 
deadly  blow  may  be  aimed  at  the 
entire  fabric  of  our  institutions,  and 
they  can  be  leveled  to  the  ground. 
If  the  President  can  practically  make 
a  treaty,  and  that  is  what  he  is  doing 
in  other  directions,  and  dispose  of  the 
reserved  rights  of  the  States,  then 
the  treaty-making  power  is  above  and 
beyond  the  Constitution,  and  the  su- 
premacy of  the  States  within  their 
own  borders  departs  an3  vanishes 
forever.  If  the  Democratic  party  ac- 
cepts such  a  doctrine  as  this,  then  it 
has  also  parted  with  its  birthright 
and  abandoned  the  historic  ground 
upon  which  it  has  stood  for  over  a 
century.  I  believe  in  the  complete 
exercise  by  the  Federal  Government 
of  every  Federal  power  contained  in 
the  Constitution,  but  beyond  the  dele- 
gated powers  and  the  right  to  pass 
all  laws  necessary  to  execute  the  dele- 
gated powers,  I  would  never  justify 
the  slightest  encroachment  upon  the 
reserved  rights  of  sovereign  States 
wdthin  their  own  borders.  In  the 


171  CONSTITUTION    CONTROLS.  [§    152 

tional,  and  no  more  the  supreme  law  of  the  land  than  an  uncon- 
stitutional act  of  Congress.  The  question,  'Can  a  treaty  override 
the  Constitution?'  is  to-day  as  absurd  as  the  question,  'Can  an 
Act  of  Congress  override  the  Constitution?'  The  treaty-making 
power,  as  the  legislative  power,  must  be  exercised  within  those 
limits,  if  any,  imposed  by  the  Constitution." 

§  152.  Same  subject — Is  the  treaty-making  power  limited  or 
unlimited. — Mr.  Lewis  said  that  the  difficulty  in  all  questions  of 
this  character  was  to  determine  whether  or  not  the  treaty-making 
power  was  limited  or  unlimited.  He  said:  "Is  it  an  unlimited 
power  or  is  it  a  limited  power ;  and  if  limited,  what  are  the  limi- 
tations ?  On  the  answers  given  to  these  questions  depends  the 
validity  of  the  Japanese  Treaty,  supposing  that  that  treaty  does 
in  terms  give  the  right  to  Japanese  residents  in  this  country  to 
send  their  children  to  the  public  schools  of  the  State  in  which 
they  reside. 

"The  discussion  of  the  extent  of  the  treaty-making  power  is 
almost  wholly  an  academic  one,  the  Supreme  Court  having  only 
decided  one  point;  namely,  that  the  treaty-making  power  of  our 
Federal  Government  is  not  confined  within  the  limits  of  the  legis- 
lative power  of  that  government.  That  can  be  done  by  treaty 
which  cannot  be  done  by  act  of  Congress." 

Referring  to  the  cases  in  which  it  was  held  that  a  treaty  re- 
moved the  disability  of  aliens  to  inherit,  he  stated:  "The  conclu- 
sion reached  from  the  cases  referred  to,  that  under  the  treaty- 
making  power  that  can  be  done  which  Congress  under  its  legis- 
lative power  cannot  do,  is  still  further  strengthened  by  the  long 
acquiescence  of  all  Departments  of  the  Federal  Government,  and 
of  the  states,  in  extradition  treaties;  treaties  in  which  claims 
of  our  citizens  against  foreign  governments  have  been  confis- 
cated, barred  and  satisfied ;  trade-mark  conventions ;  and  treaties 
giving  foreign  consuls  judicial  powers  in  the  United  States,  or 
United  States  consuls  judicial  power  over  American  citizens  in 

night  of  our  despair,  this  reserved  the  worship  of  grotesque  and  mean- 
right  of  the  States  is  the  only  con-  ingless  idols  and  follow  it  like  a 
stellation  that  for  our  party  has  no  pillar  of  fire  to  the  land  of  our  na- 
' fellow  in  the  firmament.'  We  were  tivity."  41  Congressional  Eecord, 
born  under  its  horoscope,  and  if  there  No.  8,  pp.  281-288. 
is  any  life  left  in  us  we  must  forsake 


152] 


CONSTRUCTION  OP  TREATIES,  ETC. 


172 


foreign  lands.  In  all  these  treaties  will  be  found  provisions 
which  Congress  alone,  under  its  legislative  power,  could  not 
enact." 

"On  the  other  hand  no  member  of  the  Supreme  Court,  text- 
writer,  or  publicist  has  yet  taken  the  position  that  the  treaty- 
making  power  of  our  Federal  Government  is  absolutely  un- 
limited."87 


87  55  American  Law  Keg.  No.  2,  Feb- 
ruary, 1907.  Speaking  of  the  clause 
relating  to  the  treaty-making  power  he 
said :  ' '  The  three  main  articles 
of  the  Constitution  deal  respec- 
tively with  the  legislative,  ex- 
ecutive and  judicial  departments. 
The  clause  conferring  treaty-making 
power  is  in  the  second  Article.  This 
Article  provides  that  the  President 
'shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of 
the  Senators  present  concur. '  The 
Constitution  does  not  specify  the  sub- 
jects in  regard  to  which  treaties  may 
be  made.  The  words  are  general; 
the  President  and  the  Senate  have  the 
power  to  make  treaties.  There  is  a 
marked  difference  in  this  respect  in 
the  manner  in  which  the  second  Ar- 
ticle confers  the  treaty-making  power 
and  the  way  in  which  the  first  Ar- 
ticle confers  the  power  of  legislation. 
The  first  Article,  after  providing  for 
the  creation  of  a  legislative  body,  con- 
fers on  that  body,  not  the  power  to 
legislate,  but  the  power  to  legislate 
on  particular  subjects  which  are 
carefully  enumerated. 

' '  The  powers  conferred  by  the 
first  Article  are  on  their  face  legis- 
lative powers  only.  They  neither 
purport  to  give  nor  take  away  any 
power  which  the  President  and  the 
Senate  may  possess  in  respect  to 
treaties.  This  fact  is  the  justifica- 
tion for  the  decisions  of  the  Supreme 
Court  to  which  reference  has  been 


made.  Shortly  after  the  Constitution 
was  adopted,  when  the  Jay  Treaty 
with  England  was  under  discussion,  it 
was  supposed  by  some  that  as  the. 
first  Article  conferred  on  Congress 
the  power  to  regulate  foreign  com- 
merce, under  the  treaty-making 
power  no  commercial  treaty  could  be 
negotiated.  It  was  soon  perceived, 
however,  that  regulations  of  foreign 
commerce  could  be  the  result  either 
of  an  act  or  a  treaty,  and  that  while 
the  first  Article  had  conferred  on 
Congress  legislative  power  which  en- 
abled them  to  regulate  foreign  com- 
merce, that  did  not  prevent  the 
treaty-making  power  from  being  so 
exercised  as  to  produce  the  same  re- 
sult. Since  then  the  proposition  that 
the  treaty-making  power  of  our  Fed- 
eral Government  is  neither  enlarged 
or  contracted  by  the  grants  of  legis- 
lative power  in  the  first  Article  has 
never  been  seriously  questioned.  Tak- 
ing these  first  two  Articles  of  the  Con- 
stitution by  themselves,  it  is  as  clear 
that  general  treaty-making  power  is 
conferred  in  the  second  Article,  as  it 
is  that  limited  legislative  power  is 
conferred  in  the  first  Article.  If  it 
be  objected  that  the  Constitution  does 
not  in  express  terms  give  to  the  Fed- 
eral Government  power  to  make  any 
treaty  it  sees  fit,  it  can  be  replied,  that 
where  those  who  are  sovereignty,  as 
the  power  of  legislation  or  the  power 
to  make  a  treaty,  the  word  'all'  is 
not  necessary  to  explain  the  extent 
of  the  power.  The  power  to  do 


173 


LIMITATION  BY   CONSTITUTION. 


[§    153 


§  153.     Same  subject — Limitation  by  words  of  constitution. 

Mr.  Lewis  having  pointed  out  that  the  treaty-making  power  is 
not  limited  by  the  nature  of  the  power,  states  that  it  is  limited 
by  the  words  of  the  Constitution,  because  the  Constitution  creates 
a  government  with  three  separate  departments — executive,  legis- 
lative and  judicial — and  that  it  is  axiomatic  that  powers  con- 
ferred upon  one  cannot  be  exercised  to  alter  the  Constitution, 
and  quotes  the  language  of  Judge  Story:  "A  power  given  by  the 
Constitution  cannot  be  construed  to  authorize  a  destruction  of 

the  other  powers  given  by  the  same  instrument A  treaty 

to  change  the  organization  of  the  government  or  annihilate  its 
sovereignty,  to  overturn  its  republican  form  or  to  deprive  of 


something  given  by  a  sovereign  hand 
is  the  power  to  do  it  in  any  way  the 
grantee  sees  fit.  The  argument  that 
because  the  word  'all'  does  not  pre- 
cede the  word  'power'  in  the  clause 
conferring  treaty-making  power  and 
that  therefore  the  power  is  limited, 
proves  too  much.  It  would  show 
that  the  words  in  the  second  Article 
do  not  confer  a  power  to  make  a 
treaty  on  any  subject.  Not  only  is 
the  word  'all'  not  used,  but  none 
of  the  subjects  on  which  treaties 
may  be  negotiated  are  referred  to. 

"As  in  apparently  unambiguous 
language  full  and  unlimited  treaty- 
making  power  is  by  the  second  Ar- 
ticle conferred  on  the  President  and 
the  Senate,  the  burden  is  on  those 
who  contend  that  the  power  is  lim- 
ited to  prove  their  case.  For  we 
must  remember  that  if  the  Constitu- 
tion does  attempt  to  give  to  the  Pres- 
ident and  Senate  an  unlimited  power 
to  make  treaties,  the  attempt  hns  been 
successful.  There  have  been  two 
theories  in  regard  to  the  adoption  of 
the  Constitution  of  the  United  States ; 
one  that  it  was  adopted  by  the  people 
of  the  United  States;  another  that  it 
was  adopted  by  the  States.  The  ad- 
vocates of  either  theory,  however, 


agree  that  the  power  which  adopted 
the  Constitution  was  competent  to 
confer  on  the  Government  created  by 
the  Constitution  all  the  powers  of 
sovereignty.  The  source  from  which 
the  Constitution  sprang  is  a  source 
of  unlimited  power  and  authority. 
The  people  or  the  States  who 
adopted  it  could  give  to  the  new  Gov- 
ernment that  they  created  just  as 
much  or  just  as  little  of  the  powers 
of  sovereignty  as  they  chose. 

"  Limitations  on  the  treaty-making 
power,  if  any  exist,  may  be  found, 
either  in  the  nature  of  the  power, 
or  the  words  of  the  Constitution. 
Again,  limitations  may  possibly  be 
implied  from  the  fact  that  our  Con- 
stitution was  adopted  by  a  free  peo- 
ple, or  may  be  implied  from  the  very 
existence  of  the  States  as  an  integral 
part  of  our  Federal  State. 

"A  moment's  consideration  will 
show  that  there  is  nothing  in  the 
nature  of  the  power  which  limits  its 
operations  to  particular  classes  of 
subjects.  A  treaty  is  a  contract  be- 
tween two  nations.  Treaties,  if  not 
essential  to  foreign  social  and  com- 
mercial intercourse,  are  at  least  an 
important  means  of  fostering  such 
intercourse.  The  people  of  a  nation 


§    153]  CONSTRUCTION  OP  TREATIES,  ETC.  174 

its  constitutional  powers,  would  be  void,  because  it  would  destroy 
what  it  was  designed  to  fulfill  the  will  of  the  people."88 

Mr.  Lewis  continued:  "The  treaty-making  power,  as  all  other 
powers  of  our  Federal  Government,  is  necessarily  limited  to  the 
extent  here  indicated.  By  treaty  we  may  not  alter  the  Consti- 
tutional distribution  of  powers  between  the  three  Departments  of 
our  Federal  Government,  or  confer  on  any  Department  a  power 
not  conferred  on  it  by  the  Constitution.  By  treaty  we  may 
not  agree  that  hereafter  Congress  should  legislate  on  divorce,  or 
that  the  treaty-making  power  itself  should  be  executed  by 
Congress ;  or  that  a  particular  State  should  have  three  represen- 
tatives in  the  Senate. 

"If  a  treaty  cannot  alter  the  Constitution  as  written,  a  treaty 
cannot  violate  any  specific  general  restriction  on  Federal  power 
which  may  be  found  in  the  Constitution.  The  first  eight  Amend- 
ments, for  instance,  are  prohibitions  against  specific  exercises 
of  power.  In  all  except  the  first,  the  prohibition  is  in  terms 
general.  The  second  Amendment  does  not  say  that  'Congress 
shall  not  pass  any  law'  forbidding  the  people  to  bear  arms,  or 
that  'the  executive  shall  not  interfere  with  this  right,'  but  that 
'the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed.' A  treaty  which  deprived  the  people  of  this  right 
would  be  apparently  in  direct  violation  of  the  express  words  of 
the  Constitution. 

"It  is,  however,  important  to  note  that  the  10th  Amendment 
does  not  limit  the  treaty-making  power.  This  Amendment  pro- 
vides: 'The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 

regulate  their  conduct  toward  each  in  the  treaty  is  for  the  sovereign  na- 
other  by  those  customs  to  which  they  tions  who  are  parties  to  it  to  consider, 
have  given  the  force  of  law,  and  by  Being  sovereign,  the  power  to  contract 
legislation;  but  much  of  their  conduct  knows  no  legal  limits.  If,  therefore, 
towards  the  people  of  another  nation  full  and  unlimited  treaty-making 
must  be  regulated  by  treaty.  Thus,  power  is  given  to  the  Federal  Gov- 
the  binding  rules  of  conduct  of  any  ernment,  by  treaty  anything  can  be 
people  spring  from  three  sources,  done.  There  is  nothing  in  the  na- 
custom,  legislation,  and  treaties.  ture  of  the  power  to  limit  the  sub- 
There  is  nothing  in  the  nature  of  jects  on  which  treaties  can  be 
any  of  these  sources  of  law  which  made. ' ' 

prevents     any    particular    law     from  w  55  Am.  Law  Eeg.   No.  2,  citing 

having  its  origin  in  any  one  of  them.  Story  on  Constitution,  sec.  1506. 
The  wisdom  of  the  contract  expressed 


175  THE   TENTH   AMENDMENT.  [§    154 

the  States  respectively,  or  to  the  people. '  But  the  power  to  make 
treaties  is  expressly  given  to  the  United  States  by  the  Constitu- 
tion, and  the  Constitution  also  expressly  prohibits  the  States 
from  exercising  the  treaty-making  power.  The  power  to  make 
treaties,  therefore,  is  not  one  of  the  powers  'reserved  to  the 
States  respectively,  or  to  the  people,'  mentioned  in  this  Amend- 
ment," 

§  154.  The  tenth  amendment. — In  the  argument  of  this  ques- 
tion by  law-writers  it  was  asserted  by  those  who  claimed  that 
the  treaty-making  power  could  not  extend  to  the  subject  of  edu- 
cation that  such  a  treaty  would  violate  the  tenth  amendment  of 
the  Constitution.  Referring  to  this  proposition,  Mr.  Lewis  stated : . 
"  Again,  it  is  important  to  note  that  the  principle  that  a  treaty 
cannot  alter  the  Constitution  as  written  cannot  be  extended  to 
prohibit  treaties  dealing  with  subjects  not  referred  to  in  the 
Constitution.  It  may  be  that  there  are  limitations  on  the  treaty- 
making  power,  arising  out  of  the  fact  that  the  Constitution 
was  adopted  by  a  free  people,  or  from  the  very  existence  of 
the  states  as  a  necessary  part  of  the  Federal  system.  But  such 
limitations,  if  they  exist,  do  not  come  from  the  words  of  the 
Constitution.  For  instance,  it  is  admitted  that  a  treaty  which 
conferred  on  Congress  the  right  to  regulate  marriage  and  divorce 
would  be  unconstitutional.  But  whether  the  marriage  of  aliens 
in  the  United  States  could  be  regulated  by  treaty  is  a  radically 
different  question.  If  the  treaty-making  power  cannot  deal  with 
the  subject  of  the  marriage  of  aliens  in  the  United  States,  it  is 
not  because  of  anything  expressed  in  our  Constitution.  The 
Constitution  confers  on  Congress  legislative  power  over  certain 
subjects.  The  marriage  and  divorce  of  natives  or  aliens  in  a 
State  of  the  United  States  is  not  a  subject  on  which  Congress 
has  been  given  power  to  legislate.  To  confer  such  power  on 
Congress  by  treaty  would  alter  the  Constitution  as  written.  But 
to  regulate  divorce  by  treaty  does  not  alter  the  Constitution  as 
written.  As  has  been  pointed  out,  the  Constitution  gives  to  the 
President  and  the  Senate  the  power  to  make  treaties.  It  does 
not  say  that  the  marriage  and  divorce  of  aliens  in  the  United 
States  shall  not  be  regulated  by  treaty.  There  is  no  clause  in 
the  Constitution  which  such  a  treaty  would  violate.  To  say  that 
we  have  not  given  the  power  to  legislate  on  divorce  to  Congress 


sj     .)  CONSTRUCTION  OF  TREATIES,  ETC.  176 

and  therefore  that  it  may  be  presumed  that  it  was  not  intended 
to  confer  on  the  President  and  Senate  the  power  to  regulate  the 
subject  by  treaty,  is  to  take  the  position  that  the  grants  of  legis- 
lative power  limit  the  treaty-making  power ;  a  position  which  has 
been,  as  we  have  seen,  expressly  repudiated  by  the  Supreme 
Court.  If,  therefore,  there  is  no  power  to  make  a  treaty  on  the 
subject,  the  want  of  power  must  be  due,  not  to  anything  ex- 
pressed in  the  Constitution,  but  to  some  implied  limitation  on  the 
treaty-making  power. 

"The  principles  on  which  we  would  have  to  test  the  validity 
of  a  treaty  on  the  marriage  and  divorce  of  aliens  in  the  United 
States  also  applies  to  the  Treaty  under  discussion.  Admitting 
that  our  Treaty  with  Japan  provides  that  Japanese  residents  shall 
have  a  right  to  attend  the  public  schools  of  a  State,  it  is  evident 
that  such  treaty  does  not  violate  any  clause  of  the  Constitution  as 
written.  Such  a  treaty  does  not  confer  on  Congress  legislative 
power  over  the  State  schools.  It  does  not  increase  or  decrease 
legislative  or  executive  power  as  found  in  the  Constitution  or 
violate  any  of  its  express  prohibitions.  The  right  of  the  Federal 
Government  to  adopt  a  treaty  of  the  character  indicated  can  only 
be  denied  by  showing  that  such  a  treaty  violates  an  implied  lim- 
itation on  the  treaty-making  power. ' '  89 

80  55  Am.  Law  Beg.  No.  2.  He  specified  tend  to  protect  individual 
proceeded:  "The  people  of  the  liberty  and  the  republican  form  of 
United  States  are  organized  in  a  government.  Following  these  Amend- 
Federal  State.  An  implied  limitation  inents,  the  9th  Amendment  provides: 
on  a  power  delegated  to  the  Federal  'The  enumeration  in  the  Constitution 
Government  must  arise  out  of  the  ex-  •  of  certain  rights  shall  not  be  con- 
istence  of  some  implied  reserved  strued  to  deny  or  disparage  others 
right  in  the  people  of  the  United  retained  by  the  people.'  The  word- 
States,  or  out  of  the  existence  of  ing  of  this  Amendment  presupposed 
some  implied  reserved  right  in  the  the  existence  of  reserved  rights  in  the 
States  considered  as  corporate  enti-  people  of  the  United  States  not  men- 
ties,  tioned  in  the  Constitution.  There 

"We  may  first  ask:  Are  there  any  are,  therefore,  implied  limitations  on 

implied  reserved  rights  of  the  people  the  treaty-making  power  and  on 

of  the  United  States  not  mentioned  every  other  power  of  the  Federal 

in  the  Constitution.  Our  Constitu-  Government  arising  out  of  the  fact 

tion  was  adopted  by  a  free  people  that  the  Constitution  was  adopted  by 

and  was  intended  for  their  govern-  a  free  people  imbued  with  the  im- 

ment.  The  first  eight  Amendments  portance  of  individual  liberty  and 

specify  certain  rights  of  the  people  '  firmly  believing  in  democratic  insti- 

of  the  United  States.  The  rights  tutions.  It  is  unnecessary  to  discuss 


177 


NO   QUESTION  OP  STATE  RIGHTS  INVOLVED. 


;§  155 


§  155.  No  question  of  state  rights  involved.— It  was  contended 
that  by  the  provision  of  the  treaty  with  Japan  and  its  enforce- 
ment the  question  of  state  rights  became  involved.  Mr.  Boot, 
Secretary  of  State,  said  that  no  question  of  state  rights  was  in- 


specific  illustrations  of  possible  vio- 
lations of  these  implied  limitations 
on  the  treaty-making  power,  for  a 
treaty  which  gives  to  aliens  the  right 
to  attend  the  public  schools  of  a 
State  does  not  violate  any  possible 
rule  of  law  designed  to  protect  the 
hoerty  of  the  citizens  of  the  United 
States  or  the  republican  form  of 
government. 

' '  If  the  Treaty  under  discussion 
does  not  violate  any  part  of  the  Con- 
stitution as  written,  or  any  implied 
limitation  on  1;he  treaty-making  power 
arising  out  of  the  implied  reserved 
rights  of  the  citizens  of  the  United 
States,  the  single  question  remains: 
Does  it  violate  any  implied  limitation 
on  the  treaty-making  power  arising 
out  of  implied  reserved  rights  of  the 
States? 

11  If  the  treaty-making  power  is 
necessarily  limited  by  the  nature  of 
a  Federal  State,  then  it  will  be  neces- 
sary to  go  outside  the  Constitution 
to  ascertain  the  nature  of  those  limi- 
tations, and  whether  they  prohibit 
the  Central  Government  from  making 
the  treaty  in  question.  On  the  other 
hand  if  there  is  nothing  in  the  nature 
of  a  Federal  State,  in  which  the 
Central  Government  has  all  the 
treaty-making  power,  to  impose  im- 
plied restrictions  on  the  subjects 
which  may  be  dealt  with  under  that 
power,  such  an  investigation  will  be 
unnecessary. 

1 '  The  broad  question  whether  any 
limitations  on  the  treaty-making 
power  arise  of  necessity  from  the 
Federal  nature  of  our  State  has 
never  been  thoroughly  discussed. 
Treaties — 12 


But  the  most  important  single  ques- 
tion which  tests  the  question  of  the 
existence  of  such  a  limitation  on  the 
right  of  our  Federal  Government  by 
treaty  to  cede  the  territory  of  a 
State  without  its  consent,  has  been 
the  subject  of  many  positive  and 
conflicting  assertions.  Chancellor 
Kent  in  his  Commentaries;  Justice 
McLean  in  Lattimore  v.  Poteet,  and 
Mr.  Butler  in  his  work  on  the 
Treaty-making  Power,  are  all  of  the 
opinion  that  such  a  power  exists. 
On  the  other  hand,  Woolsey,  in  his 
work  on  International  Law,  and  the 
late  Justice  Field,  of  the  Supreme 
Court,  deny  the  power. 

' '  The  greater  power  includes  the 
less.  If  it  can  be  shown  that  there 
is  nothing  in  the  nature  of  a  Federal 
State  to  prevent  the  treaty-making 
power  from  ceding  part  or  all  of  the 
territory  of  a  State  to  a  foreign 
power,  there  is  certainly  nothing  in 
the  nature  of  such  a  State  to  pre- 
vent the  subjects  of  a  foreign  power 
from  being  given  by  treaty  the  right 
to  attend  the  public  schools  of  the 
State.  In  the  second  case  a  State  is 
merely  required  to  devote  a  part  of 
its  property,  set  aside  for  the  educa- 
tion of  native  residents,  to  the  edu- 
cation of  foreign  residents;  but  in 
the  first  the  State  itself  is  destroyed. 

"That  our  Constitution  should 
carefully  guard  and  limit  the  legisla- 
tive power  of  the  Federal  Govern- 
ment is  most  natural.  The  regula- 
tion of  interstate,  not  state  com- 
merce; protection  to  the  United 
States  as  a  nation,  not  regulations  of 


§  155] 


CONSTRUCTION  OF  TREATIES,  ETC. 


178 


volved,  unless  it  was  the  question  settled  by  the  adoption  of  the 
Constitution.     To  use  his  own  language : 

"Legislative   power   is   distributed;   upon   some   subjects  the 
National  Legislature  has  authority ;  upon  other  subjects  the  State 


the  internal  affairs  of 'the  States,  are 
objects  of  the  union.  General  legis- 
lative power  in  the  Federal  Govern- 
ment was  unnecessary  to  accomplish 
the  ends  in  view.  But  the  power  to 
deal  with  foreign  nations  as  a  unit; 
to  secure  as  a  unit  in  time  of  peace 
the  best  commercial  treaties  possible; 
as  a  unit  to  make  war,  if  war  was 
necessary;  and  as  a  unit  to  make  the 
best  peace  possible,  if  peacB  was 
necessary;  all  these  were  prime  ob- 
jects of  the  Union,  and  they  are  ob- 
jects which  cannot  be  obtained  by 
conferring  a  treaty-making  power 
limited  and  fettered  in  the  way  it 
was  both  wise  and  feasible  that  the 
Federal  legislative  power  should  be 
fettered.  Take  even  the  power  to 
part  by  treaty  with  the  territory  of  i 
State.  The  probability  that  the  new 
nation  would  sooner  or  later  be  en- 
gaged in  war  was  present  to  the 
minds  of  those  who  adopted  our  Con- 
stitution. Wars  are  ended  by  treaties 
of  peace.  The  spectacle  of  a  nation 
being  obliged  to  purchase  peace  by 
the  cession  of  territory  is  not  rare. 
Before,  as  well  as  since,  the  adoption 
of  our  Constitution,  other  nations 
have  often  had  to  purchase  peace  by 
the  cession  of  territory.  Germany 
demanded  Alsace  and  Lorraine  as 
the  price  of  withdrawing  their  troops 
from  Paris.  The  experience  of 
France  is  not  unique.  Though  we 
are  now  a  powerful  nation  removed 
probably  for  many  decades  to  come 
from  the  fear  of  foreign  invasion, 
we  have  in  the  course  of  our  short 
history  seen  a  foreign  power  in  pos- 
session of  our  national  capital.  If 


by  entering  a  union  with  other  States, 
a  State  renders  it  legally  possible 
for  the  Central  Government  to  sacri- 
fice Tier  territory  or  her  complete  con- 
trol over  her  police  arrangements  to 
protect  the  territory  of  other  States, 
she  also  gains  the  reciprocal  advan- 
tage of  being  able  to  save  herself 
and  the  great  majority  of  the  other 
States  by  sacrificing  the  territory  of 
a  sister  State.  Such  an  arrangement 
is  not  one-sided. 

' '  Take  the  specific  case  under  con- 
sideration. The  power,  to  admit  or 
exclude  aliens  from  the  territory  of 
a  State  unquestionably  resides  in  our 
Federal  Government.  The  Federal 
Government  has  the  exclusive  power 
of  naturalization.  When  the  States 
have  already  given  to  the  Central 
Government  the  power  to  admit  aliens 
and  make  them  citizens,  entitled  to 
all  the  rights  and  privileges  of  citi- 
zenship, there  is  nothing  unreasonable 
in  their  also  conferring  on  that  gov- 
ernment the  power  to  give  aliens, 
after  admission  to  a  State  and  be- 
fore naturalization,  the  right  to  be 
admitted  to  her  public  schools 

' '  If  these  conclusions  are  correct, 
our  Federal  Government  has  under 
the  Constitution  power  to  make  a 
treaty  with  Japan  or  any  other  for- 
eign nation,  giving  to  the  subjects 
or  citizens  of  the  foreign  nation  re- 
siding in  one  of  the  States  the  right 
to  attend  the  public  schools  of  the 
State  on  the  same  terms  as  native 
or  naturalized  citizens.  In  the  Con- 
stitution itself  we  find  nothing  to  re- 
strain the  President  from  negotiat- 
ing, with  two-thirds  of  the  Senate 


179  NO  QUESTION  OP  STATE  RIGHTS  INVOLVED.  [§  155 

Legislature  has  authority.  Judicial  power  is  distributed;  in 
some  cases  the  Federal  courts  have  jurisdiction ;  in  other  cases  the 
State  courts  have  jurisdiction.  Executive  power  is  distributed; 
in  some  fields  the  National  Executive  is  to  act ;  in  other  fields  the 
State  Executive  is  to  act.  The  treaty-making  power  is  not  dis- 
tributed ;  it  is  all  vested  in  the  National  Government ;  no  part  of 
it  is  vested  in  or  reserved  to  the  States.  In  international  affairs 
there  are  no  States;  there  is  but  one  nation,  acting  in  direct  re- 
lation to  and  representation  of  every  citizen  in  every  State. 
Every  treaty  made  under  the  authority  of  the  United  States  is 
made  by  the  National  Government,  as  the  direct  and  sole  repre- 
sentative of  every  citizen  of  the  United  States  residing  in  Cali- 
fornia equally  with  every  citizen  of  the  United  States  residing 
elsewhere.  It  is,  of  course,  conceivable  that,  under  pretense  of 
exercising  the  treaty-making  power,  the  President  and  Senate 
might  attempt  to  make  provisions  regarding  matters  which  are 
not  proper  subjects  of  international  agreement,  and  which  would 
be  only  a  colorable — not  a  real — exercise  of  the  treaty-making 
power;  but  so  far  as  the  real  exercise  of  the  power  goes,  there 
can  be  no  question  of  State  rights,  because  the  Constitution  itself, 
in  the  most  explicit  terms,  has  precluded  the  existence  of  any 
such  question. ' '  90 

from  ratifying  such  a   treaty.     It  is  "  It    is    not    the    purpose    of    this 

not  opposed  to  the  fundamental  char-  paper   to    discuss   the    merits   of   this 

acteristics  of  free  republican  govern-  controversy.     In  its  present  stages  it 

ment;   it  does  not  interfere  with  the  is   important   only    because    it   points 

liberty  of  the  citizens  of  the  United  out    that     the    limitations    upon     the 

States;    and   finally,   there  is  nothing  treaty-making  power  have  never  been 

in    the    nature   of   our   Federal    State  authoritatively    defined   and   that    the 

from  which  we  may  imply  any  liniita-  precedents  are  so  few  as  to  leave  the 

tion  on  the  treaty-making  power  not  question  an   open   one   as   to   whether 

found  in   the  words  of  the  Constitu-  there    are    any     limitations     at     all, 

tion. ' '  other    than    those    imposed    upon    the 

90  Address    before    the    American  treaty-making    power    of    most    other 

Society     of     International     Law     at  countries.     If,  however,  owing  to  the 

Washington,   April   19,   1907.     In  the  peculiar    structure    of    our    political 

Columbia  Law  Review  of  March,  1907,  system,   such   limitations   do   exist,   it 

Vol.  VII,  No.  3,  appeared  an  article  is    plain    that    the    consequences   may 

written  by  Arthur  K.  Kuhn,  entitled  be   serious;    for   the   Federal   Govern- 

"The   Treaty-making  Power   and  the  ment  may  either  find  itself  incapable 

Reserved  Sovereignty  of  the  States."  of    maintaining    the    integrity     of     a 

Among    other    things     he     said:  compact   regularly   entered   into   with 


§  156] 


CONSTRUCTION  OF  TREATIES,  ETC. 


180 


§  156.  Implied  limitations  upon  treaty-making  power. — While 
Mr.  Root  claimed  that  there  were  no  express  limitations  upon  the 
treaty-making  power  granted  to  the  national  government,  he  ad- 


some  foreign  power  for  the  benefit  of 
citizens  or  subjects  of  that  power  re- 
siding or  sojourning  in  the  United 
States,  or  as  a  corollary,  it  may  find 
that  it  is  powerless  to  enforce  recip- 
rocal provisions  protective  of  or  bene- 
ficial to  our  own  citizens  residing  or 
sojourning  within  the  territory  of 
that  power. 

"An  example  of  the  first  case  was 
presented  by  the  incident  known  as 
that  of  the  Mafia  Eiots,  which  oc- 
curred in  1891,  and  which  resulted  in 
a  withdrawal  from  Washington  of  the 
Italian  Minister  accredited  to  the 
United  States.  In  that  year,  a  num- 
ber of  Italians  then  confined  in  New 
Orleans  were  forcibly  taken  from  jail 
and  hanged  by  a  large  number  of  citi- 
zens. None  of  the  participants  was 
tried,  though  the  then  existing  treaty 
(November  23d,  1871)  guaranteed  to 
the  citizens  of  either  nation  in  the 
territory  of  the  other  'the  most  con- 
stant protection  and  security  for 
their  persons  and  property. '  Neither 
was  any  compensation  possible  under 
the  laws  of  the  State  of  Louisiana 
owing  to  the  fact  that  the  common 
civil  law  prevailed  in  that  State  pur- 
suant to  which  no  action  lay  for  in- 
jury to  a  person,  resulting  in  his 
death.  Under  the  position  taken  by 
Mr.  Elaine,  then  Secretary  of  State, 
the  Federal  Government  was  power- 
less to  'do  more  than  urge  upon  the 
State  officers,  the  duty  of  promptly 
bringing  the  offenders  to  trial/  .  .  .  . 

"We  think  that  the  issue  was  thus 
very  clearly  brought  out,  but  it  was 
not  settled  at  the  time  because,  fol- 
lowing the  usual  practice,  the  Federal 
courts  evaded  the  question  of  the  ca- 


pacity of  the  treaty-making  power 
to  impress  upon  the  laws  of  a  State 
a  provision  within  its  police  powers, 
and  therefore  otherwise  reserved,  in 
favor  of  aliens,  in  exchange  for  re- 
ciprocal benefits  to  our  own  citizens 
within  the  territory  of  the  foreign 
state.  Instead,  the  decision  went  off 
on  a  point  of  the  interpretation  of 
the  treaty.  Furthermore,  the  Federal 
Government  finally  avoided  further 
conflict  with  Italy  by  offering  to  her 
a  sum  of  money  to  be  distributed 
among  the  families  of  the  victims, 
though  the  letter  offering  this  indem- 
nity disclaimed  any  liability  on  the 
part  of  the  United  States  Govern- 
ment  

1 1  These  examples  from  the  diplo- 
matic relations  of  the  United  States 
with  other  powers  are  cited  to  show 
the  situation  presented  by  the  pecu- 
liarity of  our  organic  law.  The  war 
spirit  which  pervaded  both  countries 
at  the  time  of  the  incident  with  Italy 
and  the  energetic  measures  employed 
in  the  President's  recent  message  to 
Congress  to  quell  a  recurrence  of  it 
on  either  side  of  the  Pacific  because 
of  the  incident  with  Japan,  indicate 
the  importance  of  having  a  clear  defi- 
nition of  the  treaty-making  power 
under  our  Constitution.  A  strongly 
centralized  nation  such  as  Italy  or 
France,  or  as  we  have  seen  even  our 
own  government  when  in  the  position 
of  the  complainant,  will  never  submit 
without  a  struggle  to  the  avoidance  of 
treaty  obligations  on  the  plea  of  ultra 
vires.  Neither  will  the  opportunist 
methods  of  diplomacy  forever  prove 
adequate.  Mr.  Blaine  adopted  the 
attitude  of  the  overzealous  attorney 


181  IMPLIED  LIMITATIONS  UPON   TREATY-MAKING  POWER.       [§    156 


mitted  that  there  were  certain  implied  limitations  arising  from 
the  nature  of  the  federal  government  and  from  other  provisions 
of  the  Constitution,  but  he  asserted  that  these  limitations  did  not 


defending  his  client  from  a  money 
claim  for  injuries  and  finally  com- 
promised on  the  best  basis  possible. 
This  will  not  do,  for,  as  the  case  of 
the  Monti  jo  proves,  the  shoe  has  been, 
and  again  may  be  on  the  other  foot. 

' '  In  'respect  of  categories  of  legis- 
lation enumerated  in  the  Constitution, 
there  can  be  no  dispute  as  between 
the  authority  of  the  treaty-making 
organs  and  the  States.  Here  at  most 
there  may  arise  the  question  whether 
there  has  been  a  usurpation  of  the 
legislative  powers  of  Congress. 
Though  not  within  the  limitations  of 
the  present  paper,  we  may  say  that 
even  as  far  back  as  1840  Mr.  Calhoun 
recognized  that  even  the  exclusive 
delegation  of  a  power  to  Congress 
does  not  exclude  it  from  being  the 
subject  of  treaty  stipulations.  Of 
this  the  power  of  appropriating 
money  furnishes  a  striking  example. 
If  the  contrary  should  be  maintained, 
it  might  truly  be  said  that  the  exer- 
cise of  the  treaty-making  powers  has 
been  'one  continual  series  of  habitual 
and  uninterrupted  infringements  of 
the  Constitution.' 

1 '  Of  all  the  movements  toward  cen- 
tralization by  construction  and  inter- 
pretation, which  have  been  progress- 
ing since  the  formation  of  the  Fed- 
eral Union,  none  would  seem  more 
necessary  for  the  preservation  of  the 
whole  than  the  tendence  toward  a 
liberal  construction  of  Article  VI  of 
the  Constitution.  Even  in  the  Con- 
vention, the  necessity  for  the  widest 
delegation  of  these  powers  was  recog- 
nized. Madison  pointed  out  that  the 
violation  by  the  States,  as  separate 


entities,  of  treaties  passed  under  the 
old  Articles  of  Confederation  had  al- 
ready resulted  in  complaints  from  al- 
most every  nation  with  which  treaties 
had  been  formed.  It  is  plain  from 
the  discussion  which  ensues  that  the 
provision  was  adopted  in  its  present 
form  in  order  to  prevent  any  part  of 
the  nation  from  causing  a  rupture  be- 
tween a  foreign  nation  and  the  whole. 
It  is  significant  that  after  a  full  dis- 
cussion in  the  Convention,  the  only 
restraints  placed  upon  a  treaty-mak- 
ing power  were  as  to  the  method  in 
which  treaties  must  be  made  and  rati- 
fied, and  that  those  restrictions  re- 
lated only  to  the  method  of  exercising 
the  power  and  not  to  its  scope  or  su- 
premacy. 

"From  the  very  nature  of  our  gov- 
ernment, the  treaty-making  power 
must  reside  centrally  or  nowhere.  If 
there  be  a  limitation  upon  the  power 
of  the  President  and  Senate  to  enter 
into  a  particular  treaty,  the  power  of 
the  entire  nation  has  been  by  so  much 
cut  down. 

"For  all  practical  purposes  of  ne- 
gotiation with  a  foreign  nation,  there 
is  no  residue  of  such  power  left  any- 
where. Adopting  the  reasoning  of 
Mr.  Butler,  now  Eeporter  of  the  Su- 
preme Court  of  the  United  States, 
we  may  say  that  as  to  those  subjects 
over  which  it  was  neither  proper  not 
practical,  for  a  State  to  exercise 
sovereignty,  but  which  required  na- 
tional action  for  the  joint  or  equal 
benefit  of  every  State,  it  was  impossi- 
ble for  any  State  separately,  or  all 
the  States  collectively,  either  to  dele- 
gate or  reserve  elements  of  sover- 
eignty which  none  of  them  possessed. 


§  156] 


CONSTRUCTION  OF  TREATIES,  ETC. 


182 


to  the  slightest  extent  affect  the  execution  of  treaty  stipulations 
relating  to  the  treatment  of  aliens  within  the  United  States.  He 
referred  to  the  declaration  of  the  supreme  court  of  the  United 
States  that  the  treaty-making  power  extends  to  all  proper  sub- 
jects of  negotiation  between  our  government  and  the  govern- 
ments of  other  nations,  and  that,  as  expressed  in  the  Constitu- 
tion, it  is  in  terms  unlimited  except  by  those  restraints  which 
are  found  in  that  instrument  against  the  action  of  the  govern- 
ment or  of  its  departments,  and  those  arising  from  the  nature  of 
the  government  itself ,  and  of  that  of  the  states,  and  that  with  the 
exception  of  not  authorizing  what  the  Constitution  forbids,  nor 
authorizing  a  change  in  the  character  of  the  government,  or  in 
that  of  one  of  the  states,  or  a  cession  of  any  portion  of  the  ter- 
ritory of  a  state  without  its  consent,  "it  is  not  perceived  that 
there  is  any  limit  to  the  questions  which  can  be  adjusted  touch- 
ing any  matter  which  is  properly  the  subject  of  negotiation  with 
a  foreign  country."91 


1 1  Whatever  may  have  been  the  in- 
tention of  the  framers  of  the  Con- 
stitution in  respect  of  the  reserved 
powers  of  the  States  within  the  cate- 
gory of  national  or  State  law,  it 
could  never  have  been  (and  the  de- 
bates in  the  Convention  so  prove)  to 
limit  the  central  government  in  the 
exercise  of  its  international  power  as 
a  sovereign  to  protect  and  benefit  the 
citizens  of  all  of  the  States  in  foreign 
countries,  and  for  that  purpose,  to 
assure  reciprocal  rights  to  aliens  in 
all  of  the  States.  It  is  clear  that  as 
a  practical  matter  the  one  power  fol- 
lows as  a  corollary  of  the  other.  If 
it  has  the  power  to  obtain  the  right 
in  behalf  of  our  own  citizens,  it  has 
the  power  to  pledge  the  faith  and 
honor  of  the  nation  for  the  perform- 
ance of  the  quid  pro  quo  as  an  obli- 
gation upon  all  of  the  States.  If  it 
be  said  that  thus  a  treaty  may  be 
made  the  subterfuge  for  imposing  un- 
desired  legislation  upon  the  States,  it 
may  be  answered  that  besides  the 
numerous  political  checks  provided  for 


in  our  system,  the  Supreme  Court  has 
ample  authority  to  review  the  exer- 
cise of  the  constitutional  prerogative 
just  as  it  does  in  respect  to  an  excess 
by  Congress  and  the  President,  in  the 
exercise  of  one  of  the  expressly  dele- 
gated powers. 

"But  with  these  exceptions,  the  un- 
restricted exercise  of  the  treaty  power 
is  essential  to  the  Central  Government 
as  representing  the  nation  and  its 
sovereignty  over  and  against  foreign 
nations.  It  is  wholesome  because  it 
tends  to  prevent  war.  It  is  consistent 
because  Article  I,  Section  10,  ex- 
pressly denies  all  treaty  power  to  the 
States  without  the  consent  of  Con- 
gress and  further  because  all  of  the 
States  are  equally  represented  in  the 
ratifying  body,  wherein  two-thirds 
must  concur.  International,  not  mu- 
nicipal, standards  of  law  should  de- 
termine its  scope  and  the  limitations 
of  its  use. ' ' 

81  In  De  Geofroy  v.  Eiggs,  133  U. 
S.  258,  10  Sup.  Ct.  Eep.  295,  33  L. 
ed.  642,  Mr.  Boot's  Address  before 


183  IMPLIED  LIMITATIONS  UPON   TREATY-MAKING  POWER.       [§    157 


§  157.  Same  subject— Mr.  Root's  views.— Mr.  Root  stated  that 
among  the  most  familiar,  ordinary  and  unquestioned  exercises  of 
the  treaty-making  power  are  reciprocal  agreements  between  na- 
tions relative  to  the  treatment  which  the  citizens  of  each  nation 


American  Society  of  International 
Law,  April  19,  1907.  Judge  Schac- 
kleford  Miller,  of  Louisville,  Ken- 
tucky, delivered  a  lecture  before  the 
Jefferson  School  of  Law,  in  which, 
after  citing  the  clause  in  the  treaty 
relating  to  residence,  he  said:  "It 
will  no  doubt  readily  be  conceded 
that  the  right  of  the  Japanese  stu- 
dents to  attend  the  public  schools  must 
be  founded  upon  this  treaty  right  of 
residence  or  it  does  not  exist.  There 
is  no  other  right  or  privilege  men- 
tioned in  the  treaty  which  could  even 
be  remotely  claimed  to  embrace  the 
right  of  attending  the  public  schools. 
It  would  seem,  however,  that  a  fair 
construction  of  the  treaty  would 
scarcely  extend  the  privileges  of  the 
public  schools  of  a  State  to  unnatur- 
alized  foreigners.  If  the  Federal 
Government  had  so  intended,  it  is  but 
reasonable  to  assume  that  the  treaty 
would  have  so  provided  in  express 
terms.  It  was  careful  to  cover  the 
rights  of  entry,  travel,  residence,  the 
succession  of  personalty,  and  the  dis- 
position of  property  of  all  kinds,  but 
it  nowhere  appears  that  school  privi- 
leges were  ever  considered. 

''Under  the  present  treaty,  there- 
fore, it  would  seem  reasonably  clear 
that  the  Japanese  residents  of  Cali- 
fornia have  no  right  to  have  them- 
selves and  their  children  educated  at 
the  public  schools  and  at  the  public 
expense. ' ' 

In  an  article  entitled  ' ( The  Segre- 
gation of  Japanese  Students  by  the 
School  Authorities  of  San  Francis- 
co," by  Charles  Cheney  Hyde,  pub- 
lished in  the  Green  Bag,  Vol.  XIX, 


No.  1,  January,  1907,  it  is  said:  "It 
is  a  benefit  to  the  alien  resident  in  the 
United  States  that  whenever  he  may 
believe  that  his  rights  under  a  treaty 
are  infringed  by  the  act  of  a  single 
state  he  may  secure  a  judicial  inter- 
pretation of  the  treaty  by  a  compe- 
tent tribunal.  The  fact  that  such  ^n 
inquiry  may  be  made  by  a  court  which 
is  independent  of  the  political  de- 
partment of  the  government,  and  free 
to  consider  the  question  of  infringe- 
ment on  its  merits,  is  a  means  of  pro- 
tection to  the  foreigner.  If  his  con- 
tention is  sustained,  the  court,  in  pur- 
suance of  a  constitutional  provision, 
will  pronounce  null  and  void,  and 
therefore  inoperative,  any  local  ordi- 
nance or  state  law  which  it  finds  to 
be  in  violation  of  the  treaty.  Be- 
cause this  means  of  redress  is  open  to 
the  alien,  the  United  States  is  justi- 
fied in  requiring  that  an  alleged  viola- 
tion of  a  treaty  by  the  act  of  a  state 
should  be  made  the  subject  of  judicial 
inquiry  in  an  American  court  before 
being  asserted  as  a  ground  for  diplo- 
matic intervention.  Such  has  been 
our  constant  practice. 

11  In  a  note  to  the  Chinese  Minister, 
May  27,  1890,  the  Secretary  of  State, 
Mr.  Blaine,  in  reply  to  a  protest  from 
the  Chinese  government  against  an 
ordinance  of  San  Francisco,  requiring 
Chinese  subjects  there  residing  to  re- 
move from  their  existing  homes  and 
places  of  business  to  a  particular  part 
of  that  city,  as  a  violation  of  Article 
III  of  the  treaty  of  1880  said: 

"  'Meanwhile,  may  I  ask  your  at- 
tention to  the  sixth  article  of  the  Con- 
stitution of  the  United  States,  which 


157] 


CONSTRUCTION  OF  TREATIES,  ETC. 


184 


shall  receive  in  the  territory  of  the  other.  "To  secure  the  citi- 
zens of  one's  country  against  discriminatory  laws  and  discrim- 
inatory administration  in  the  foreign  countries  where  they  may 
travel  or  trade  or  reside  is,  and  always  has  been,  one  of  the  chief 


places  treaties  on  the  same  juridical 
basis  as  laws  and  makes  them  the  su- 
preme law  of  the  land,  anything  in 
the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.  By 
the  second  section  of  the  third  article 
the  judicial  power  of  the  United 
States  is  made  to  extend  to  all  cases 
arising  under  the  treaties.  Under 
these  provisions,  and  the  statutes  of 
the  United  States  passed  to  give  them 
effect,  it  is  believed  that  the  Chinese 
who  are  said  to  have  been  arrested 
under  the  order  in  question  may,  in 
an  application  to  the  courts  for  re- 
lease from  imprisonment  or  deten- 
tion, speedily  obtain  a  decision  as  to 
their  rights  and  the  legality  of  the 
order. ' 

11  Advantageous  as  it  may  be  from 
every  point  of  view,  both  to  the  alien 
and  to  our  own  government,  that  an 
American  tribunal  should  determine 
whether  a  foreigner  residing  in  the 
United  States  has  been  prevented 
from  enjoying  the  exercise  of  a  treaty 
right,  it  cannot  be  said  that  the  de- 
cision of  such  a  question  by  such  a 
tribunal  can  fully  determine  the  right- 
fulness  of  the  claim  advanced.  When 
the  decision  of  the  court  denies  the 
contention  of  the  alien,  his  govern- 
ment is  not  bound  by  the  judicial  in- 
terpretation of  the  treaty.  If,  for 
example,  the  federal  courts  should  de- 
cide that  the  action  of  the  school  au- 
thorities of  San  Francisco  was  not  in 
contravention  of  the  treaty  of  1894 
with  respect  to  Japanese  subjects 
there  residing,  the  Emperor  of  Japan 
would  not  be  under  any  obligation  to 
accept  the  decision  as  decisive  of  the 


rights  of  his  subjects.  This  exact 
situation  was  forcibly  commented  on 
by  Mr.  Elaine  in  writing  to  Mr. 
Comly  in  Hawaii,  June  30,  1881: 

"  'I  am  not  aware  whether  or  not 
a  treaty,  according  to  the  Hawaiian 
Constitution  is,  as  with  us,  a  supreme 
law  of  the  land,  upon  the  construction 
of  which — the  proper  case  occurring — 
every  citizen  would  have  the  right  to 
the  judgment  of  the  courts.  But, 
even  if  it  be  so,  and  if  the  judicial  de- 
partment is  entirely  independent  of 
the  executive  authority  of  the  Hawai- 
ian government,  then  the  decision  of 
the  court  would  be  the  authorized  in- 
terpretation of  the  Hawaiian  govern- 
ment, and  however  binding  upon  that 
government  would  be  none  the  less  a 
violation  of  the  treaty.  In  the  event, 
therefore,  that  a  judicial  construction 
of  the  treaty  should  annul  the  privi- 
leges stipulated  and  carried  into  prac- 
tical execution,  this  government  would 
have  no  alternative  and  would  be  com- 
pelled to  consider  such  action  as  the 
violation  by  the  Hawaiian  government 
of  the  express  terms  and  conditions 
of  the  treaty,  and,  with  whatever  re- 
gret, would  be  forced  to  consider  what 
course  in  reference  to  its  own  inter- 
ests had  become  necessary  upon  the 
manifestation  of  such  unfriendly 
feeling. ' 

"It  is  not  unreasonable  for  a  state 
to  feel  itself  free  from  any  obligation 
to  yield  to  the  interpretation  given  to 
the  provisions  of  a  treaty  by  a  local 
tribunal  of  the  other  contracting 
party.  The  right  of  a  court  to  do  jus- 
tice between  nations — to  render,  for 
example,  a  decision  as  to  the  meaning 


185  IMPLIED  LIMITATIONS  UPON   TREATY-MAKING  POWER.       [§    157 


objects  of  treaty  making,  and  such  provisions  always  have  been 
reciprocal.  During  the  entire  history  of  the  United  States,  pro- 
visions of  this  description  have  been  included  in  our  treaties  of 
friendship,  commerce,  and  navigation  with  practically  all  the 
other  nations  of  the  world.  Such  provisions  had  been  from  time 
immemorial  the  subject,  of  treaty  agreements  among  the  nations 
of  Europe  before  American  independence;  and  the  power  to 
make  such  provisions  was  exercised  without  question  by  the 
Continental  Congress  in  the  treaties  which  it  made  prior  to  the 
adoption  of  our  Constitution."  He  said  that  it  was  not  open  to 
doubt  that  when  the  delegates  from  the  thirteen  states  "conferred 
the  power  to  make  treaties  upon  the  new  National  Government  in 
the  broadest  possible  terms  and  without  any  words  of  limitation, 
the  subjects  about  which  they  themselves  had  been  making 
treaties  then  in  force  were  included  in  the  power."92 


of  a  treaty,  and  which  shall  be  legally 
binding  on  the  signatories  thereto, 
must  be  founded  on  their  mutual  con- 
sent. This  fact  is  now  generally  ap- 
preciated by  civilized  states.  It  is 
one  of  the  reasons  why  nations  are 
willing  to  agree  that  disputes  concern- 
ing the  interpretation  of  treaties,  and 
which  cannot  be  adjusted  through 
diplomatic  channels,  may  be  referred 
to  international  courts  of  arbitration, 
such  as  the  permanent  Tribunal  at 
The  Hague. 

"On  the  other  hand,  by  reason  of 
the  learning  and  integrity  of  the  Su- 
preme Court  of  the  United  States, 
and,  therefore,  on  account  of  the 
strong  probability  that  its  interpreta- 
tion of  the  treaty  of  1894  would  be 
the  true  interpretation,  and  such  as  an 
international  court  of  arbitration 
would  render  under  similar  circum- 
stances, it  is  not  unlikely  that  the 
Japanese  Government  would  yield  to 
the  decision  of  that  tribunal  and  ad- 
mit the  correctness  of  its  views.  In 
the  present  controversy,  therefore,  it 
is  not  to  be  anticipated  that  a  decision 
by  the  highest  court  of  the  United 


States  adverse  to  the  contentions  of 
Japan  would  be  regarded  by  that 
government  as  arbitrary  or  unreason- 
able, or  as  not  decisive  of  the  rights 
of  the  high  contracting  parties. ' ' 

92  He  called  attention  to  the  treaties 
of  1778  with  France  and  of  1782  with 
the  States-General  of  the  United 
Netherlands,  and  of  1785  with  Prus- 
sia, ratified  by  the  continental  Con- 
gress on  May  17,  1786.  He  quoted 
the  language  of  Mr.  Bancroft  Davis, 
summarizing  the  provisions  of  the 
Prussian  treaty:  "The  favored  na- 
tion clause  put  Prussia  on  the  best 
footing  in  the  ports  of  Charleston, 
Boston,  Philadelphia,  and  New  York, 
no  matter  what  the  legislatures  of 
South  Carolina,  Massachusetts,  Penn- 
sylvania, or  New  York  might  say. 
Aliens  were  permitted  to  hold  per- 
sonal property  and  dispose  of  it  by 
testament,  donation,  or  otherwise,  and 
the  exaction  of  State  dues  in  excess 
of  those  exacted  from  citizens  of  the 
State  in  like  cases  were  forbidden. 
The  right  was  secured  to  aliens  to 
frequent  the  coasts  of  each  and  all 
the  States,  and  to  reside  and  trade 


§  158]  CONSTRUCTION  OF  TREATIES,  ETC.  186 

§  158.  Distribution  of  governmental  powers. — Mr.  Root  took 
the  view  that  inasmuch  as  the  rights,  privileges  and  immunities  to 
be  given  to  foreign  subjects  in  the  United  States  and  to  Amer- 
ican citizens  in  foreign  countries  form  a  proper  subject  of  treaty 
provision  within  the  limits  of  the  treaty-making  power,  and  in- 
asmuch as  such  rights,  privileges  and  immunities  may  be  accorded 
in  contravention  of  the  laws  of  any  state,  it  necessarily  follows 
that  the  treaty-making  power  alone  has  the  authority  to  deter- 
mine what  shall  be  those  rights,  privileges  and  immunities. 
"No  state,"  said  he,  "can  set  up  its  laws  as  against  the  grant  of 
any  particular  right,  privilege,  or  immunity  any  more  than 
against  the  grant  of  any  other  right,  privilege  or  immunity.  No 
State  can  say  a  treaty  may  grant  to  alien  residents  equality  of 
treatment  as  to  property,  but  not  as  to  education,  or  as  to  the 
exercise  of  religion  and  as  to  burial,  but  not  as  to  education,  or 
as  to  education,  but  not  as  to  property  or  religion.  That  would 
be  substituting  the  mere  will  of  the  State  for  the  judgment  of 
the  President  and  Senate  in  exercising  a  power  committed  to 
them  and  prohibited  to  the  States  by  the  Constitution. 

"There  was,  therefore,  no  real  question  of  power  arising  under 
this  Japanese  Treaty  and  no  question  of  State  rights. 

"There  were,  however,  questions  of  policy,  questions  of  national 
interests  and  of  State  interests,  arising  under  the  administration 
of  the  treaty  and  regarding  the  application  of  its  provisions  to 
the  conditions  existing  on  the  Pacific  coast. 

"In  the  distribution  of  powers  under  our  composite  system  of 
government  the  people  of  San  Francisco  had  three  sets  of  inter- 
ests committed  to  three  different  sets  of  officers — their  special 
interest  as  citizens  of  the  principal  city;  and  commercial  port  of 
the  Pacific  coast  represented  by  the  city  government  of  San 
Francisco;  their  interest  in  common  with  all  the  people  of  the 
State  of  California  represented  by  the  Governor  and  Legislature 
at  Sacramento ;  and  their  interests  in  common  with  all  the  people 
of  the  United  States  represented  by  the  National  Government  at 
Washington.  'Each  one  of  these  three  different  governmental 
agencies  had  authority  to  do  certain  things  relating  to  the  treat- 
there.  Eesident  aliens  were  assured  ship;  and  when  dying,  they  were 
against  State  legislation  to  prevent  guaranteed  the  right  of  decent  burial 
the  exercise  of  liberty  of  conscience  and  undisturbed  rest  for  their  bod- 
and  the  performance  of  religious  wor-  ies." 


187 


DISTRIBUTION   OF   GOVERNMENTAL   POWERS. 


158 


ment  of  Japanese  residents  in  San  Francisco.  These  three  inter- 
ests could  not  be  really  in  conflict;  for  the  best  interest  of  the 
whole  country  is  always  the  true  interest  of  every  State  and  city, 
and  the  protection  of  the  interests  of  every  locality  in  the  coun- 
try is  always  the  true  interests  of  the  Nation. ' ' 93 


93  Speaking  of  the  conference  with 
the  officials  of  San  Francisco,  he  said: 
' '  There  was,  however,  a  supposed  or 
apparent  clashing  of  interests,  and,  to 
do  away  with  this,  conference,  com- 
munication, comparison  of  views,  ex- 
planation of  policy  and  purpose  were 
necessary.  Many  thoughtless  and 
some  mischievous  persons  have  spoken 
and  written  regarding  these  confer- 
ences and  communications  as  if  they 
were  the  parleying  and  compromise 
of  enemies.  On  the  contrary,  they 
were  an  example  of  the  way  in  which 
the  public  business  ought  always  to 
be  conducted;  so  that  the  different 
public  officers  respectively  charged 
with  the  performance  of  duties  affect- 
ing the  same  subject-matter  may  work 
together  in  furtherance  of  the  same 
public  policy  and  with  a  common  pur- 
pose for  the  good  of  the  whole  coun- 
try and  every  part  of  the  country. 
Such  a  concert  of  action  with  such  a 
purpose  was  established  by  the  con- 
ferences and  communications  between 
the  national  authorities  and  the  au- 
thorities of  California  and  San  Fran- 
cisco which  followed  the  passage  of 
the  Board  of  Education  resolution. 

"There  was  one  great  and  serious 
question  underlying  the  whole  subject 
which  made  all  questions  of  construc- 
tion and  of  scope  and  of  effect  of  the 
treaty  itself — all  questions  as  to 
whether  the  claims  of  Japan  were  well 
founded  or  not;  all  questions  as  to 
whether  the  resolution  of  the  school 
board  was  valid  or  not — seem  tem- 
porary and  comparatively  unimpor- 
tant. It  was  not  a  question  of  war 


with  Japan.  All  the  foolish  talk 
about  war  was  purely  sensational  and 
imaginative.  There  was  never  even 
friction  between  the  two  Governments. 
The  question  was,  What  state  of  feel- 
ing would  be  created  between  the 
great  body  of  the  people  of  the  United 
States  and  the  great  body  of  the 
people  of  Japan  as  a  result  of  the 
treatment  given  to  the  Japanese  in 
this  country? 

"What  was  to  be  the  effect  upon 
that  proud,  sensitive,  highly  civilized 
people  across  the  Pacific,  of  the  dis- 
courtesy, insult,  imputations  of  in- 
feriority and  abuse  aimed  at  them  in 
the  columns  of  American  newspapers 
and  from  the  platforms  of  American 
public  meetings?  What  would  be  the 
effect  upon  our  own  people  of  the  re- 
sponses that  natural  resentment  for 
such  treatment  would  elicit  from  the 
Japanese? 

' '  The  first  article  of  the  first  treaty 
Japan  ever  made  with  a  western 
power  provided: 

1 '  '  There  shall  be  a  perfect,  perma- 
nent, and  universal  peace  and  a  sin- 
cere and  cordial  amity  between  the 
United  States  of  America  on  the  one 
part,  and  the  empire  of  Japan  on  the 
other  part,  and  between  their  people 
respectively,  without  exception  of  per- 
sons or  places.' 

"Under  that  treaty,  which  bore  the 
signature  of  Matthew  Calbraith  Perry, 
we  introduced  Japan  to  the  world  of 
western  civilization.  We  had  always 
been  proud  of  her  wonderful  develop- 
ment— proud  of  the  genius  of  the  race 
that  in  a  single  generation  adapted 


§  159] 


CONSTRUCTION  OF  TREATIES,  ETC. 


188 


§  159.  Suits  by  the  government. — For  the  purpose  of  enforc- 
ing what  it  deemed  to  be  the  rights  of  the  Japanese  under  the 
treaty,  the  United  States  filed  a  bill  in  equity  in  the  circuit 
court  of  the  United  States,  in  which  it  alleged  that  the  acts  of 
the  school  authorities  of  San  Francisco  constituted  a  violation 
of  the  treaty,  and  prevented  the  United  States  "from  carrying 
out  its  treaty  obligations  to  the  Empire  of  Japan  and  to  its 
citizens  and  subjects,  as  is  the  right  and  duty  of  the  United 
States,  and  imperatively  demanded  by  the  national  interests." 
The  right  of  the  United  States  to  maintain  such  a  proceeding  was 
based  upon  the  principles  announced  in  the  Debs  case,94  holding 
that  a  court  of  equity  has  jurisdiction  to  issue  an  injunction  for 
the  purpose  of  aiding  the  power  and  duty  of  the  general  govern- 
ment to  prevent  a  forcible  obstruction  of  commerce  and  of  the 
transportation  of  the  mails.  In  this  case  the  principle  was  rec- 
ognized that  while  the  government  may  use  force  to  prevent  any 


an  ancient  feudal  system  of  the  Far 
East  to  the  most  advanced  standards 
of  modern  Europe  and  America.  The 
friendship  between  the  two  nations 
had  been  peculiar  and  close.  Was 
the  declaration  of  that  treaty  to  be 
set  aside?  At  Kurihama,  in  Japan, 
stands  a  monument  to  Commodore 
Perry,  raised  by  the  Japanese  in 
grateful  appreciation,  upon  the  site 
where  he  landed  and  opened  negotia- 
tions for  the  treaty.  Was  that  monu- 
ment henceforth  to  represent  dislike 
and  resentment?  Were  the  two  peo- 
ples to  face  each  other  across  the  Pa- 
cific in  future  years  with  angry  and 
resentful  feelings?  All  this  was  in- 
evitable if  the  process  which  seemed 
to  have  begun  was  to  continue,  and 
the  Government  of  the  United  States 
looked  with  the  greatest  solicitude 
upon  the  possibility  that  the  process 
night  continue. 

"It  is  hard  for  democracy  to  learn 
the  responsibilities  of  its  power;  but 
the  people  now,  not  governments, 
make  friendship  or  dislike,  sympathy 
or  discord,  peace  or  war,  between 


nations.  In  this  modern  day,  through 
the  columns  of  the  myriad  press  and 
messages  flashing  over  countless  wires, 
multitude  calls  to  multitude  across 
boundaries  and  oceans  in  courtesy  or 
insult,  in  amity  or  in  defiance.  For- 
eign officers  and  ambassadors  and 
ministers  no  longer  keep  or  break  the 
peace,  but  the  conduct  of  each  people 
toward  every  other.  The  people  who 
permit  themselves  to  treat  the  people 
of  other  countries  with  discourtesy 
and  insult  are  surely  sowing  the  wind 
to  reap  the  whirlwind,  for  a  world  of 
sullen  and  revengeful  hatred  can 
never  be  a  world  of  peace.  Against 
such  a  feeling  treaties  are  waste 
paper  and  diplomacy  the  empty  rou- 
tine of  idle  form.  The  great  ques- 
tion which  overshadowed  all  discus- 
sion of  the  Treaty  of  1894  was  the 
question:  Are  the  people  of  the 
United  States  about  to  break  friend- 
ship with  the  people  of  Japan?  That 
question,  I  believe,  has  been  happily 
answered  in  the  negative. ' ' 

94  158  U.  S.  564,  15  Sup.  Ct.  Kep. 
900,  39  L.  ed.  1092. 


189  COLORED  CHILDREk  AND   THE  PUBLIC   SCHOOLS.  [§    160 

unlawful  interference  with  interstate  commerce  and  the  trans- 
portation of  the  mails,  this  right  did  not  prevent  it  from  appeal- 
ing to  the  courts  for  a  judicial  determination  of  its  powers,  and 
for  the  prevention  of  a  threatened  or  continuous  act,  and  that 
the  fact  that  the  government  has  no  pecuniary  interest  in  the 
matter  is  not  a  sufficient  answer  to  an  appeal  for  any  proper 
assistance  in  the  exercise  of  its  powers  and  the  discharge  of  its 
duties.95  As  said  by  Mr.  Justice  Brewer:  " Every  government, 
entrusted  by  the  very  terms  of  its  being  with  powers  and  duties 
to  be  exercised  and  discharged  for  the  general  welfare,  has  a 
right  to  apply  to  its  own  courts  for  any  proper  assistance  in  the 
exercise  of  the  one  and  the  discharge  of  the  other,  and  it  is  no 
sufficient  answer  to  its  appeal  to  one  of  these  courts  that  it  has 
no  pecuniary  interest  in  the  matter.  The  obligation  which  it  is 
under  to  promote  the  interest  of  all  and  to  prevent  the  wrong- 
doing of  one  resulting  in  injury  to  the  general  welfare  is  often 
of  itself  sufficient  to  give  it  a  standing  in  court. "  96  A  proceed- 
ing in  mandamus  was  also  brought  by  the  father  of  a  Japanese 
child  who  had  been  excluded  from  all  but  the  Oriental  school, 
asking  that  a  writ  issue  reinstating  him  in  the  school  which  he 
formerly  attended.  When  the  controversy  was  settled  by  the 
withdrawal  of  the  resolution  objected  to,  the  suits  were  dismissed. 

§  160.  Colored  children  and  the  public  schools. — The  question 
involved  in  the  Japanese  school  controversy  did  not  touch  the 
power  of  the  state  to  legislate  for  its  own  citizens  and  to  make 
distinctions  based  upon  color  where  equality  of  rights  in  sub- 
stance was  not  denied.  It  may  be  said  to  be  settled  law  that  no 
constitutional  right  is  violated  by  the  establishment  of  separate 
schools  for  white  and  colored  children.97  The  privileges  granted 
by  the  law  of  a  state  to  a  child  to  attend  the  public  schools  is  not 

93  In  re  Debs,  158  U.  S.  564,  15  Sup.  Maryland  Institute,   87   Md.   643,   41 

Ct.  Eep.  900,  39  L.  ed.  1092.  Atl.  126;  Koberts  v.  City  of  Boston, 

96  In  re  Debs,  158  U.  S.  564,  15  Sup.  5    Gush.    198;    State    v.    McCann,    21 
Ct.  Eep.  900,  39  L.  ed.  1092.  Ohio  St.  198 ;  Martin  v.  Board  of  Edu- 

97  People   v.    Gallagher,   93   N.   Y.  cation,  42  W.  Va.  514,  26  S.  E.  348; 
438,   45   Am.   Rep.    232,   affirming    11  Lehew  v.  Brummell,  103  Mo.  546,  23 
Abb.  N.   C.  187;    Cory  v.   Carter,  48  Am.  St.  Rep.  895,  15  S.  W.  765,  11 
Ind.  327,  17  Am.  Rep.  738;  McMillan  L.  R.  A.  828;  Ward  v.  Flood,  48  Cal. 
v.   School  Committee,  107  N.   C.   609,  49,  17  Am.  Rep.  405. 

12  S.  E.  330,  10  L.  R.  A.  823;  State  v. 


§  161]  CONSTRUCTION  OF  TREATIES,  ETC.  190 

a  privilege  that  a  citizen  of  the  United  States  possesses  as  such, 
and  a  person  on  the  mere  status  of  citizenship  has  no  right  to 
demand  admission  into  such  schools.  Still  the  privilege  of  an 
education,  in  obedience  to  the  provisions  of  a  state  constitution, 
is  a  legal  right  to  the  same  extent  as  a  vested  right  in  property.98 

§  161.  Same  facilities  for  education  to  be  afforded. — The  legis- 
lature, in  creating  a  system  of  education  for  the  children  of  the 
state,  cannot  exclude  colored  children  from  the  lienefits  of  such 
system  because  of  their  African  descent  merely,  but  a  law  which 
provides  for  the  education  of  children  of  African  descent  in  sepa- 
rate schools  is  not  in  conflict  with  the  Constitution.  The  sepa- 
rate schools,  however,  should  afford  the  same  facilities  for  educa- 
tion." 

The  question  in  the  Japanese  school  case  was  (assuming  that  a 
privilege  of  residence  included  the  right  of  education),  Could 
the  national  government,  by  treaty,  guarantee  that  the  subjects 
of  the  treaty-making  power  should  be  placed  on  the  ground  of 
equality  with  other  aliens  and  not  discriminated  against  on  the 
assumption  of  racial  inferiority?  In  this  connection  it  might  be 
urged  that  an  alien  would  have  a  better  right  or  a  different  right 
than  one  native-born,  because  the  latter,  on  account  of  color, 
might  be  sent  to  a  different  school.  But  even  if  this  were  so,  it 
all  comes  back  to  the  proposition  whether  a  treaty  may  not  sus- 
pend the  powrer  of  the  state  to  legislate  in  any  manner  obnoxious 
to  the  treaty. 

A  state  court  may  refuse,  on  grounds  of  public  policy,  to  apply 
the  doctrine  of  comity  so  as  to  subject  by  attachment  to  the  pay- 
ment of  an  indebtedness  due  a  German  corporation  from  a  German 
subject  a  fund  within  the  state  to  which  one  of  its  own  citizens  as- 
serts a  claim,  where  the  effect  of  such  action  would  be  to  remove 
the  fund  to  a  foreign  country,  to  be  administered  in  favor  of  the 
foreign  creditors.100 

98  Ward   v.   Flood,  48   Cal.   36,   17           10°  Discontento  Gesellschaft  v.  Urn- 
Am.  Eep.  405.  breit,  decided  February  24,   1908,   9 

99  Ward   v.   Flood,  48   Cal.   36,   17       Advance  Sheets,  U.  S.  Sup.  Ct.  Opin- 
Am.    Eep.    405.  ions,  337. 


191       CONFLICT   BETWEEN   TREATIES   AND   ACTS   OF   CONGRESS.       [§    162 


CHAPTER  VIII. 

CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGEESS. 

§  162.  Treaties  supreme  law  of  land. 

§  163.  History  of  clause. 

§  164.  •  Pre-existing  treaties. 

§  165.  Under  the  authority  of  the  United  States. 

§  166.  Construction  of  clause. 

§  167.  Treaty  is  equivalent  to  an  act  of  Congress. 

§  168.  Treaty  is  a  contract. 

§  169.  Tariff  laws  and  treaties. 

§  170.  Acts  admitting  states  to  Union. 

§  171.  Treaties  with  Indians. 

§  172.  Acts  of  admission  affecting  navigable  waters. 

§  173.  Damages  for  temporary  inconvenience. 

§  174.  Building  bridges. 

§  175.  Head  money  cases. 

§  176.  Reconciling  act  and  treaty. 

§  177.  Absurd  conclusion  to  be  avoided. 

§  178.  Repeal  by  implication. 

§  179.  Fair  construction  not  permitting  arrest  on  prior  conviction. 

§  180.  Reasoning  of  the  court. 

§  181.  Extension  of  treaty  by  doubtful  construction. 

§  182.  Abrogation  must  clearly  appear. 

§  183.  Dissenting  views  of  Justices  Field  and  Bradley. 

§  184.  Same  rule  as  to  repeal  of  statutes  by  implication. 

§  185.  Self -executing  treaties. 

§  186.  Chinese  exclusion  cases. 

§  187.  Chinese  children  born  in  the  United  States. 

§  188.  Application  of  fourteenth  amendment. 

§  189.  Right  to  return. 

§  190.  Power  of  state  to  exclude. 

§  191.  Construction  of  exclusion  laws. 

§  192.  Conclusiveness  of  decision  of  department. 

§  193.  Hearing  arbitrarily  denied. 

§  162.  Treaties  supreme  law  of  land. — The  Constitution  de- 
clares that  treaties  shall  be  the  supreme  law  of  the  land.  The 
clause  on  this  subject  is:  "This  Constitution  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and  the 


§    163]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         192 

judges  in  every  state  shall  be  bound  thereby,  anything  in  the 
Constitution  or  laws  of  any  state  to  the  contrary  notwithstand- 
ing."1 

§  163.  History  of  clause. — When  the  constitutional  convention 
had  assembled,  Governor  Kandolph,  of  Virginia,  on  May  29th 
offered  a  series  of  resolutions  for  the  consideration  of  the  con- 
vention, which  became  known  as  the  "Virginia  plan,"  and  in 
relation  to  treaties  contained  this  clause:  "The  national  legisla- 
ture ought  to  be  empowered  ....  to  negative  all  laws  passed  by 
the  several  states,  contravening  in  the  opinion  of  the  national 
legislature,  the  Articles  of  Union,  or  any  treaty  subsisting  under 
the  authority  of  the  Union. ' '  Much  discussion  took  place  in  the 
convention  over  this  clause,  it  being  objected  that  the  states  would 
become  disgusted,  and  Luther  Martin  stated  that  he  considered  the 
clause  improper,  and  inquired  whether  the  laws  of  the  states 
were  to  be  transmitted  to  the  general  legislature  before  they 
could  become  operative.  By  others  the  provision  was  thought 
necessary,  and  it  was  urged  that  unless  a  negative  power  existed, 
the  propensity  of  the  states  to  disarrange  and  embarrass  the  sys- 
tem could  not  be  restrained.  The  clause  was  defeated  by  a  vote 
of  seven  to  three,  and  then  the  following  resolution  introduced  by 
Luther  Martin  was  adopted:  "That  the  legislative  acts  of  the 
United  States,  made  by  virtue  and  in  pursuance  of  the  Articles  of 
Union,  and  all  treaties  made  and  ratified  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  respective 
states,  so  far  as  these  acts  or  treaties  shall  relate  to  the  said 
states,  or  their  citizens  and  inhabitants ;  and  that  the  judiciaries 
of  the  several  states  shall  be  bound  thereby  in  their  decisions, 
anything  in  the  respective  laws  of  the  individual  states  to  the 
contrary  notwithstanding. ' '  2  The  proposition,  although  adopted, 
was  referred  to  the  Committee  on  Detail,  who  reported  the  pro- 
vision thus : 

"Article  VIII.  The  acts  of  the  legislature  of  the  United  States 
made  in  pursuance  of  this  Constitution,  and  all  treaties  made  un- 
der the  authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  several  states,  and  of  their  citizens  and  inhabitants;  and 
the  judges  in  the  several  states  shall  be  bound  thereby  in  their 

1  Art.  VI,  cl.  2.  2  1  Elliot,  207,  V,  322. 


193  PRE-EXISTING   TREATIES.  [§    164 

decisions,  anything  in  the  constitutions  or  laws  of  the  several 
states  to  the  contrary  notwithstanding." 

When  the  convention  took  up  the  clause  for  consideration,  it 
amended  it  by  inserting  the  word,  "Constitution,"  and  by  chang- 
ing the  words  "acts  of  the  legislature"  to  "laws,"  so  that  in  its 
amended  form  it  read:  "This  Constitution,  and  the  laws  of  the 
United  States  made  in  pursuance  thereof,  and  all  the  treaties  made 
under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  several  states,  and  of  their  citizens  and  inhabitants; 
and  the  judges  of  the  several  states  shall  be  bound  thereby  in 
their  decisions,  anything  in  the  Constitutions  or  laws  of  the  sev- 
eral states  to  the  contrary  notwithstanding."3 

§  164.  Pre-existing  treaties. — Later  the  clause  was  amended 
by  inserting  the  words  "or  which  shall  be  made"  after  the  words 
"all  treaties  made,"  for  the  purpose  of  removing  any  doubt  that 
might  exist  as  to  the  application  of  the  clause  to  pre-existing 
treaties,  by  using  language  that  covered  both  past  and  future 
treaties.  The  clause  was  then  referred  to  the  "Committee  on 
Style,"  who  struck  out  the  words  "in  their  decisions"  after  the 
words  "bound  thereby";  substituted  the  words  "in  every  state" 
for  the  words  "of  the  several  states";  before  the  word  "made" 
after  the  words  "United  States"  inserted  the  words  "which  shall 
be,"  and  substituted  the  phrase  "supreme  law  of  the  land"  for 
the  phrase  "supreme  law  of  the  several  states,  and  of  their 
citizens  and  inhabitants."  This  left  the  clause  in  the  form  in 
which  it  now  appears  in  the  Constitution.  The  convention  re- 
jected a  proposition  that  "no  treaty  should  be  binding  on  the 
United  States  unless  ratified  by  law. "  4 

Mr.  George  Ticknor  Curtis,  speaking  of  the  amendment  to  this 
clause,  to  make  the  Constitution,  and  the  laws  passed  in  pur- 
suance of  it,  the  supreme  law  of  the  land,  binding  upon  all  judicial 
officers,  says:  "It  is  a  remarkable  circumstance  that  this  pro- 
vision was  originally  proposed  by  a  very  earnest  advocate  of  the 
rights  of  the  States — Luther  Martin.  His  design,  however,  was 
to  supply  a  substitute  for  a  power  over  State  legislation,  which 
had  been  embraced  in  the  Virginia  plan,  and  which  was  to  be 

8  5  Marshall  'a  Life  of  Washington,  4  5  Marshall 's  Life  of  Washington, 

654.  654-658. 

Treaties — 13 


§    165]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         194 

exercised  through,  a  negative  by  the  national  legislature  upon  all 
laws  of  the  States  contravening,  in  their  opinion,  the  Articles  of 
Union  or  the  treaties  subsisting  under  the  authority  of  the  Union. 
The  purpose  of  the  substitute  was  to  change  a  legislative  into  a 
judicial  power,  by  transferring  from  the  national  legislature  to 
the  judiciary  the  right  of  determining  whether  a  state  law  sup- 
posed to  be  in  conflict  with  the  Constitution,  laws,  or  treaties 
of  the  Union  should  be  inoperative  or  valid.  By  extending  the 
obligation  to  regard  the  requirements  of  the  national  Constitu- 
tion and  laws  to  the  judges  of  the  state  tribunal,  their  supremacy 
in  all  the  judicatures  of  the  country  was  secured.  This  obliga- 
tion was  enforced  by  the  oath  or  affirmation  to  support  the  Con- 
stitution of  the  United  States ;  and,  as  we  shall  see  hereafter,  lest 
this  security  should  fail,  the  final  determination  of  questions  of 
this  kind  was  drawn  to  the  national  judiciary,  even  when  they 
might  have  originated  in  a  state  tribunal. ' ' 5 

§  165.  Under  the  authority  of  the  United  States.— It  will  be 
observed  that  in  this  clause  of  the  Constitution  it  is  declared  that 
all  laws  which  shall  be  made  "in  pursuance"  of  the  Constitution 
shall  be  the  supreme  law  of  the  land,  but  that  as  to  treaties,  the 
language  is,  "All  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States  shall  be  the  supreme  law  of  the 
land."  The  explanation  given  for  this  difference  of  phraseology 
is  that  at  the  time  the  Constitution  was  adopted,  certain  treaties 
were  in  existence  which  had  been  entered  into  by  Congress  under 
the  confederation,  and  it  was  desired  to  declare  their  continuing 
obligation.  By  using  the  phrase  "under  the  authority  of  the 
United  States,"  treaties  previously  made  were  placed  on  the 
same  footing  as  those  that  might  be  made  after  the  adoption  of 
the  Constitution,  as  such  former  treaties  could  not  properly  be 
described  as  made  pursuant  to  a  Constitution  which  had  not  yet 
been  adopted.6 

"The  power  to  make  treaties  and  to  send  ambassadors  and 
other  public  ministers  and  consuls  are  essential  attributes  of 
national  sovereignty,  and  of  that  international  equality  which 
the  interests  of  every  sovereignty  require  it  to  preserve.  Both 

5  Curtis'   Constitutional  History  of      tion    of    the    United    States,  1st  ed., 
the    United  States,  2d  ed.,  p.  554.  p.  58,  2d  ed.,  p.  65. 

6  Bawle's  A  View  of  the  Constitu- 


195  CONSTRUCTION  OF   CLAUSE.  [§    166 

powers  were  possessed  by  Congress  under  the  Confederation,  but 
not  to  the  extent  to  which  they  are  now  enjoyed;  for  then  the 
former  power  was  embarrassed  by  an  exception,  under  which 
treaties  might  be  substantially  frustrated  by  regulations  of  the 
States,  and  the  latter  did  not  comprehend  '  other  public  ministers 
and  consuls.' 

"As  treaties  with  France  and  Holland,  and  especially  the  treaty 
of  peace  with  Great  Britain,  existed,  it  became  necessary  to  vary 
its  terms  in  regard  to  treaties,  from  those  relative  to  the  laws  of 
the  United  States;  the  declaration  it  contains  in  respect  to  the 
supremacy  of  the  latter  operating  only  in  future,  while  in  refer- 
ence to  the  former  the  terms  are,  'All  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land.'  These  terms  were  intended  to  apply 
equally  to  previously  existing  treaties,  as  well  as  to  those  made 
subsequently  to  the  Constitution;  and  it  has,  accordingly,  been 
adjudged  by  the  Supreme  Court  that  they  effectually  repeal  so 
much  of  the  State  laws  and  Constitutions  as  are  repugnant  to 
them."7 

§  166.  Construction  of  clause. — The  Constitution  declares  that 
all  treaties  made  under  the  authority  of  the  United  States  shall 
be  the  supreme  law  of  the  land.  In  an  early  case  the  supreme 
court  of  the  United  States  was  called  upon  to  construe  this 
clause.  In  1796  it  decided  that  by  the  treaty  of  peace  made  be- 
tween Great  Britain  and  the  United  States,  on  September  3, 
1783,  the  law  of  Virginia  sequestering  British  property  was  nul- 
lified. Under  this  statute  a  debt  due  before  the  war  from  an 
American  to  a  British  subject  was,  during  the  progress  of  the 
war,  paid  into  the  loan  office  of  Virginia.  The  treaty,  it  was 
held,  destroyed  the  payment  made  under  the  statute,  revived  the 
debt,  and  gave  a  right  of  recovery  against  the  principal  debtor.8 

It  was  conceded  that  the  legislature  of  Virginia  had  power  to 
enact  such  a  law  because  from  the  4th  of  July,  1776,  to  the  forma- 
tion of  the  confederation,  the  American  states  possessed  and 
exercised  all  the  rights  of  independent  governments,  but  the 

T  William  A.   Duer's   A   Course   of          8  Ware  v.  Hylton,  3  Dall.  235,  1  L. 
Lectures  on  the  Constitutional  Juris-       ed.  568. 
prudence    of    the    United    States,    2d 
ed.,  Lect.  VIII,  p.  227. 


§§  167,  168]   CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.  196 

treaty  under  the  provisions  of  the  Constitution  declaring  treaties 
to  be  the  supreme  law  of  the  land,  it  was  decided,  superseded 
the  act.9 

§  167.  Treaty  is  equivalent  to  an  act  of  Congress. — While  it 
is  true  that  a  treaty  is  the  supreme  law  of  the  land,  it  is  not  su- 
preme in  the  same  sense  as  is  the  Constitution  itself.  A  treaty 
is  equivalent  in  legal  effect  to  a  law  of  Congress,  and  a  subsequent 
act  of  Congress  will  repeal  or  annul  a  prior  treaty,  as  will  a 
subsequent  treaty  annul  a  prior  act  of  Congress,  where  there  is 
a  conflict.  From  the  very  nature  of  the  Constitution  a  treaty 
cannot  alter  it,  nor  can  a  treaty  be  valid  if  it  violates  any  of  its 
provisions.  The  Constitution  does  not  attempt  to  settle  the  effect 
of  treaties  when  they  conflict  with  acts  of  Congress,  but  the 
courts  have  uniformly  announced  the  rule  that  a  treaty  may 
supersede  a  prior  act  of  Congress,  or  an  act  of  Congress  may 
supersede  a  prior  treaty.10 

§  168.  Treaty  is  a  contract. — A  treaty  is  essentially  a  contract 
between  two  independent  nations.  If  one  of  the  contracting  par- 
ties violates  the  stipulations  of  the  treaty,  a  remedy  for  the  vio- 
lation must  be  sought  by  the  party  injured  by  reclamations  upon 
the  other,  and  the  courts  cannot  determine  whether  the  nation 
alleging  a  breach  of  treaty  obligations  has  just  cause  of  com- 
plaint. The  validity  of  a  law  clear  in  its  provisions  cannot  be 
assailed  before  the  courts  on  the  ground  that  it  does  not  conform 
to  the  stipulations  of  a  prior  treaty.11  No  superior  efficacy  can 

9  Ware  v.  Hylton,  3  Call.  235,  1  L.  10  The  Cherokee  Tobacco,  11  Wall, 

ed.  568.     Said  Mr.  Justice  Chase:  "I  616,    20   L.    ed.    227;    Ward   v.    Eace 

apprehend   that    the    treaty   of   peace  Horse,    163   U.    S.    511,    16    Sup.    Ct, 

abolishes  the  subject  of  the  war,  and  1078,  41  L.  ed.  246;  North  etc.  S.  S. 

that  after  peace  is  concluded  neither  Co.  v.  Hedden,  43  Fed.  22;   Clark  v. 

the  matter  in  dispute   nor  the  conduct  Bates,  1  Dak.  50,  46  N.  W.  512;  Bar- 

pf  either  party,  during  the  war,  can  tram  v.  Eobertson,  21  Blatchf.  214,  15 

ever  be  revived    or  brought  into  con-  Fed.  214;   Minnesota  Canal  &  Power 

test  again.     All  violences,  injuries,  or  Co.    v.    Pratt     (Minn.),    112    N.    W. 

damages,    sustained    by     the     govern-  395. 

ment,  or  people  of  either,  during  the  "  Whitney  v.  Kobertson,  124  U.  S. 

'war  are  buried  in  oblivion;    and  all  194,  8  Sup.   Ct.  Eep.  456,  31  L.  ed. 

these  things  are  implied  in  the  very  386. 
treaty    of    peace;    and    therefore    not 
necessary  to  be  expressed." 


197  TARIFF  LAWS   AND   TREATIES.  [§    169 

be  given  to  a  treaty  over  an  act  of  Congress.  It  is  the  endeavor 
of  the  courts,  if  they  both  relate  to  the  same  subject,  to  give 
them  a  construction  that  will  make  both  effective,  if  this  can  be 
accomplished  without  violating  the  language  of  either.  If,  how- 
ever, there  is  an  inconsistency  between  them,  the  one  last  in  date 
will  control  the  other,  if  the  stipulation  on  the  subject  in  the 
treaty  is  self-executing.  If  the  action  taken  by  the  legislative 
department  is  not  satisfactory  to  the  country  with  which  the 
treaty  has  been  made,  it  may  adopt  such  measures  as  it  deems 
proper  for  the  protection  of  its  interests,  but  it  is  beyond  the 
powers  of  the  courts  to  give  any  redress.  The  courts  cannot 
determine  whether  the  legislation  of  Congress  was  justified  or 
whether  the  nation  complaining  has  just  cause  to  complain.  The 
decision  of  questions  of  this  character  belong  to  the  diplomatic 
and  legislative  departments  of  the  government  and  not  to  the 
judiciary.12  ' '  So  far  as  a  treaty  made  by  the  United  States  with 
any  foreign  nation  can  be  the  subject  of  judicial  cognizance  in 
the  courts  of  this  country,  it  is  subject  to  such  acts  as  Congress 
may  pass  for  its  enforcement,  modification  or  repeal."13  An 
act  of  Congress  imposing  taxes  on  distilled  spirits  and  tobacco 
applies  to  the  country  of  the  Cherokee  Nation,  and  prevails  over 
the  treaty  with  that  nation.14 

§  169.  Tariff  laws  and  treaties. — The  question  as  to  the  effect 
of  tariff  laws  upon  treaty  stipulations  has  frequently  arisen,  and 
it  has  been  uniformly  held  that  treaty  stipulations,  when  a  con- 
flict arises,  are  annulled,  or  perhaps,  more  correctly  speaking, 
suspended,  by  the  later  acts  of  Congress.  The  legislative  de- 
partment may  place  restrictions  and  obligations  upon  all  who 
owe  obedience  to  our  laws,  with  the  understanding,  of  course,  that 
the  nation,  in  its  character  as  a  nation,  may  be  responsible  to 
another  nation  for  any  breach  of  treaty  obligations.  The  legis- 

12  Whitney  v.  Kobertson,  124  U.  S.  Pet.  314,   7  L.  ed.  415;   and  a  prior 
194,   8   Sup.   Ct.  Kep.   456,  31  L.  ed.  treaty  may  be  superseded  by  an  act 
386;    Taylor  v.  Morton,  2   Curt.   454,  of    Congress.     Taylor    v.    Morton,    2 
Fed.  Gas.  No.  13,799.  Curt,  454,  Fed.  Gas.  No.  13,799;  The 

13  Head  Money  Cases,  112  U.  S.  580,  Clinton   Bridge,   1   Woolw.   155,   Fed. 
5   Sup.  Ct.  Eep.   247,   28  L.  ed.   798;  Gas.    No.    2900. 

A  treaty  may  supersede   a  prior   act  14  Cherokee       Tobacco      v.      United 

of    Congress.     Foster    v.    Neilson,     2       States,  11  Wall.   616,  20  L.  ed.  227. 


§    169]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OP  CONGRESS.         198 

lation  of  Congress,  however,  must  be  respected  by  the  courts,  and 
the  only  question  for  them  to  decide  is  whether  a  law  has  been 
enacted  annulling  or  disregarding  the  provisions  of  a  treaty. 
Where  such  a  law  has  been  passed,  it  must,  notwithstanding  the 
treaty,  be  enforced. 

The  fourth  article  of  the  treaty  with  Denmark,  which  was 
concluded  on  April  26,  1826,  and  abrogated,  but  subsequently  re- 
vived, with  the  exception  of  one  article,  on  the  12th  of  January, 
1858,  provided:  "No  higher  or  other  duties  shall  be  imposed 
on  the  importation  into  the  United  States  of  any  article,  the 
produce  or  manufacture  of  the  dominions  of  His  Majesty,  the 
King  of  Denmark ;  and  no  higher  or  other  duties  shall  be  imposed 
upon  the  importation  into  said  dominions  of  any  article  the 
produce  or  manufacture  of  the  United  States,  than  are  or  shall 
be  payable  on  the  like  articles  being  the  produce  or  manufacture 
of  any  other  foreign  country."  Under  a  treaty  made  with  the 
Hawaiian  Islands  in  1875,  in  consideration  of  reciprocal  conces- 
sions, sugar  imported  into  the  United  States  was  exempt  from 
the  payment  of  duty.  It  was  contended  that  by  virtue  of  this 
treaty  sugar  imported  from  Danish  possessions  should  also  be 
admitted  free  of  duty;  but  the  court  held  that  the  provisions 
of  the  treaty  with  Denmark  were  pledges  that  in  the  imposition 
of  duties  upon  goods  imported  into  one  of  the  countries  which 
were  the  produce  or  manufacture  of  the  other,  there  should  not 
be  any  discrimination  against  them  in  favor  of  goods  of  a  similar 
character  imported  from  any  other  country,  and  that  while  they 
placed  an  obligation  upon  both  countries  to  avoid  hostile  legis- 
lation, they  were  not  intended  to  prevent  the  special  arrange- 
ments with  other  countries  based  upon  a  concession  of  special 
privileges.15 

Likewise  it  was  held  that  the  treaty  with  the  Dominican  Re- 
public was  never  intended  to  prevent  special  concessions,  founded 
upon  sufficient  consideration,  permitting  the  importation  of  spe- 
cific articles  into  this  country  free  from  duty.16  A  stipulation  in 

15  Bartram  v.  Kobertson,  122  U.  S.  ninth   article   of  the   treaty  with  the 
116,  7     Sup.  Ct.  Eep.  1115,  30  L.  ed.  Dominican  Eepublic:    "No  higher  or 
1118.  other   duty   shall  be   imposed   on   the 

16  Whitney  v.  Eobertson,  124  U.  S.  importation  into  the  United  States  of 
192,  8  Sup.  Ct.  Eep.  457,  31  L.  ed.  any    article    the    growth,    produce    or 
387.     Eeliance    was    placed    on    the  manufacture    of    the    Dominican    Ee- 


\    UNIVERSITY 


199 


OF 


ITTING   STATES  TO   UNION. 


[§  170 


a  treaty  that  no  higher  duties  shall  be  imposed  than  are  placed 
on  goods  from  other  countries  is  a  promise  addressed  to  the 
political,  and  not  to  the  judicial,  department  of  the  government.17 

§  170.  Acts  admitting  states  to  Union. — The  right  of  Indians 
to  hunt  may  be  revoked  by  an  act  admitting  a  territory  to  be- 
come a  state,  so  that  such  Indians  may  be  punished  for  a  viola- 
tion of  the  laws  of  the  state  enacted  after  its  admission.18  The 
states  have  power  to  regulate  matters  of  internal  police.  A  state, 
on  its  admission,  is  vested  with  all  the  rights  of  dominion  and 
sovereignty  possessed  by  the  original  states.19  The  power  of 
the  state,  however,  to  tax  lands  of  Indians  under  patents  issued 
to  them  by  virtue  of  treaties  made  with  their  respective  tribes 
may  be  excluded  by  the  enabling  act  ;20  and  taxes  assessed  by  the 
laws  of  a  state  upon  Indian  reservations  conflicting  with  their 
tribal  rights  as  guaranteed  to  them  by  treaties  with  the  United 
States  are  illegal  and  void.21 


public,  or  of  her  fisheries;  and  no 
higher  or  other  duty  shall  be  imposed 
on  the  importation  into  the  Dominican 
Eepublic  of  any  article  the  growth, 
produce  or  manufacture  of  the  United 
States,  or  their  fisheries,  than  are  or 
shall  be  payable  on  the  like  articles 
the  growth,  produce  or  manufacture 
of  any  other  foreign  country  or  its 
fisheries."  Mr.  Justice  Field  said 
that  '  *  if  there  be  any  conflict  between 
the  stipulations  of  the  treaty,  and  the 
requirements  of  the  law,  the  latter 
must  control.  A  treaty  is  primarily 
a  contract  between  two  or  more  inde- 
pendent nations,  and  is  so  regarded 
by  writers  on  public  law.  For  the  in- 
fraction of  its  provisions  a  remedy 
must  be  sought  by  the  injured  party 
through  reclamations  upon  the  other. ' ' 
See  as  to  Act  of  Congress  claimed  to 
be  in  conflict  with  treaty  with  Persia, 
Powers  v.  Comly,  101  U.  S.  789,  25 
L.  ed.  805;  Hadden  v.  Collector,  5 
Wall.  107,  18  L.  ed.  518;  Sturges  v. 
Collector,  12  Wall.  19,  20  L.  ed.  255. 
See,  also,  as  to  discriminating  duties 
as  affected  by  the  treaty  with  Por- 


tugal, Oldfield  v.  Marriott,  10  How. 
146,  13  L.  ed.  364. 

17  Taylor  v.  Morton,  2  Curt.  454, 
Fed.  Gas.  No.  13,799.  See,  also, 
Ropes  v.  Clinch,  8  Blatchf.  304,  Fed. 
Cas.  No.  12,041;  Foster  v.  Neilson,  2 
Pet.  314,  7  L.  ed.  415.  Where  it  was 
claimed  that  a  law  of  Congress  rela- 
tive to  custom  duties  was  in  conflict 
with  a  treaty  with  Germany,  it  was 
held  that  the  act  must  control,  be- 
cause it  was  of  equal  force  with  the 
treaty  and  of  later  date.  North  Ger- 
man Lloyd  S.  S.  Co.  v.  Hedden,  43 
Fed.  17. 

38  Ward  v.  Eace  Horse,  163  U.  S. 
511,  16  Sup.  Ct.  Kep.  1078,  41  L.  ed. 
246,  reversing  same  case  in  70  Fed. 
608. 

19  Escanaba    etc.    Co.    v.    Chicago, 
107  U.  S.  678,  2  Sup.  Ct.  Kep.  185, 
27  L.  ed.  442. 

20  The    Kansas    Indians,   72   U.   3. 
(5  Wall.)   737,  18  L.  ed.  667. 

21  Fellows  v.  Denniston  ("The  New 
York  Indians"),  72  U.  S.   (5  Wall.) 
761,"  18  L.  ed.  708. 


§§  171,  172]   CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.  200 

"Doubtless  the  rule  that  treaties  should  be  so  construed  as  to 
uphold  the  sanctity  of  the  public  faith  ought  not  to  be  departed 
from.  But  that  salutary  rule  should  not  be  made  an  instrument 
for  violating  the  public  faith  by  distorting  the  words  of  a  treaty, 
in  order  to  imply  that  it  conveyed  rights  wholly  inconsistent 
with  its  language  and  in  conflict  with  an  act  of  Congress,  and 
also  destructive  of  one  of  the  rights  of  the  states."22 

§  171.  Treaties  with  Indians. — Subsequent  treaties  with  In- 
dians were  considered  as  modifying  a  prior  nonintercourse  law.23 
The  act  admitting  Colorado  repealed  the  treaties  with  the  Utes 
inconsistent  with  the  act  of  admission.24  Notwithstanding  the 
provisions  of  a  treaty,  Mexican  grants  of  land  in  California  are 
not  effective  without  confirmation.25  The  state  of  Montana,  by 
its  enabling  acts,  obtained  jurisdiction  over  crimes  committed  by 
Indians.26 

The  treaty  exempting  the  Osage  and  Kansas  Indian  lands  from 
inclusion  within  any  territory  or  state  must  yield  to  the  act  of 
Congress  creating  the  territory  of  Oklahoma,  which  included  such 
lands  within  its  limits.27  The  law  of  .that  territory  subjecting  to 
taxation  cattle  which  are  kept  or  grazed  on  the  Indian  reser- 
vation is  not  violative  of  the  rights  of  the  Indians,  because 
such  taxation  is  not  placed  upon  the  lands  or  privileges  of  the 
Indians.28 

§  172.  Acts  of  admission  affecting  navigable  waters. — A  clause 
in  the  act  of  admission  of  a  state  declaring  that  the  navigable 

22  Ward  v.  Kace  Horse,  163  U.   S.          26  Draper  v.  United  States,  164  U. 
511,  16  Sup.  Ct.  Eep.  1078,  41  L.  ed.       S.  243,  17  Sup.  Ct.  Rep.  108,  41  L.  ed. 

246,  per  Mr.  Justice  White.     In  that  420.     In  a  case  arising  in  Oregon,  the 
case  Mr.  Justice  Brown  dissented,  be-  court  conceded  that  an  act  of  Congress 
cause  the  opinion  of  the  court  seemed  might  repeal  a  treaty,  but  held  that 
to  him  "to  imply  and  sanction  a  dis-  the  act   of   admission  should  not    be 
tinct    repudiation    by   Congress    of    a  construed  on  account  of  its  silence  on 
treaty  with  the  Bannock  Indians."  the    subject   as   having   the    effect    to 

23  Clark  v.  Bates,  1  Dak.  50,  46  N.  modify  the  treaty.     United  States  v. 
W.  512.  Bridleman,  7  Saw.  251,  7  Fed.  902. 

24  United  States  v.  McBratney,  104  2T  Thomas  v.   Gay,    169   U.   S.   271, 
U.  S.  623,  26  L.  ed.  870.  18  Sup.  Ct.  Eep.  342,  42  L.  ed.  743. 

-5  Botiller  v.  Dominguez,  130  U.  S.  *  Thomas  v.  Gay,  169  U.  S.  271,  18 

247,  9  Sup.  Ct.  Eep.  527,  32  L.  ed.       Sup.  Ct.  Eep.  342,  42  L.  ed.  743. 
929,  citing  cases. 


201  DAMAGES  FOR  TEMPORARY  INCONVENIENCE.       [§§    173,    174 

waters  within  the  state  shall  be  free  to  the  United  States  does 
not  in  any  manner  affect  the  power  which  the  state  might  exer- 
cise over  the  subject,  if  the  clause  did  not  exist.29 

"The  act  admitting  California,"  said  Mr.  Justice  Field,  "de- 
clares that  she  is  admitted  into  the  Union  on  an  equal  footing 
with  the  original  states  in  all  respects  whatever.  She  was  not, 
therefore,  shorn,  by  the  clause  as  to  navigable  waters  within  her 
limits,  of  any  of  the  powers  which  the  original  states  possessed 
over  such  waters  within  her  limits. ' ' 30 

§  173.  Damages  for  temporary  inconvenience. — Private  per- 
sons are  not  entitled  to  damages  for  a  temporary  inconvenience, 
in  common  with  the  public  in  general,  caused  by  the  exercise 
of  a  right  given  by  law  for  the  public  benefit.  The  directions 
of  a  state  providing  for  the  form  and  character  of  a  bridge  will 
control  irrespective  of  its  effect  upon  navigation,  except  as 
against  congressional  action.31 

The  manner  in  which  the  highways  of  a  state,  by  land  or  by 
water,  shall  be  improved  for  the  best  interests  of  the  public  is  a 
matter  for  the  state  to  determine,  subject  to  the  intervention  of 
Congress  when  such  highways  become  the  means  of  interstate  and 
foreign  commerce.  A  state  may  exact  reasonable  tolls  to  com- 
pensate for  the  use  of  artificial  facilities  for  the  improvement  of 
navigation.32 

§  174.  Building  bridges. — If  a  bridge  is  built  over  a  navigable 
stream  in  pursuance  of  a  valid  authorization  from  the  state,  it 
cannot  be  adjudged  a  nuisance.  Nor  can  the  provision  in  the  act 
of  admission  "that  all  navigable  waters  within  the  state  shall  be 

29  Cardwell      v.      American      Elver  30  Cardwell      v.     American      Eiver 

Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct.  Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct. 

Eep.  423,  28  L.  ed.  959.     The  clause  Eep.   423,   28  L.  ed.   959.     See,  also, 

affected  by  the  decision  was  that  of  Escanaba  etc.  Co.  v.  Chicago,  107  U.  S. 

the   act    of   September   9,    1850,    that  678,  2   Sup.   Ct.  Eep.   185,   27  L.   ed. 

"All  the  navigable  waters  within  the  442;    Pound  v.   Turck,  95  U.   S.  459, 

said  state  shall  be  common  highways  24  L.  ed.  525. 

and  forever  free,  as  to  the  inhabitants  31  Hamilton  v.  Vicksburg  etc.  E.  E. 

of  said  state,  and  as  to  the  citizens  Co.,   119  U.  S.  285,  7   Sup.  Ct.  Eep. 

of    the    United    States,    without    any  208,  30  L.  ed.  395. 

tax,    impost    or     duty    therefor."     9  32  Huse  v.  Glover,  119  U.  S.  547,  7 

Stats,  at  Large,  454.  Sup.  Ct.  Eep.  315,  30  L.  ed.  490. 


§    175]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         202 

highways  forever,"  impair  the  power  of  the  state  to  grant  au- 
thority for  the  construction  of  bridges  over  navigable  streams.33 
It  is  not  a  violation  of  the  act  of  Congress  admitting  Oregon 
as  a  state  to  build  a  bridge  over  the  Willamette  river.  Nor  can 
it  be  assumed  that  Congress  has  exercised  police  power  over  a 
navigable  river  because  it  has  expended  money  in  improving  its 
navigation.34  The  act  of  Congress  of  March  3,  1899,35  authoriz- 
ing the  construction  of  bridges  over  navigable  waters,  and  the 
obstruction  of  such  waters  by  the  construction  of  bridges,  is  not 
in  conflict  with  the  Ashburton  treaty  of  1842,  although  a  sub- 
stantial diversion  of  the  water  might  be  a  violation  of  the  treaty.36 

§  175.  Head  money  cases. — A  treaty,  while  primarily  a  com- 
pact between  independent  nations,  may  also  confer  private  rights 
on  citizens  or  subjects  of  the  contracting  powers,  enforceable  by 
the  courts.  The  treaty  during  its  existence  is  the  supreme  law 
of  the  land,  in  all  courts  where  such  rights  are  to  be  adjudicated, 
but  such  treaty  may  be  annulled  or  suspended  by  an  act  of  Con- 
gress. The  supreme  court  of  the  United  States  has  frequently 
decided  statutes  of  a  state  imposing  a  tax  on  immigrants  to 
be  void,  because  the  power  to  enact  such  statutes  was  vested  ex- 
clusively in  Congress.  But  Congress  has  power  to  pass  such  an 
act,  and  in  1882  did  pass  an  act  to  regulate  immigration,  imposing 
upon  the  owners  of  vessels  who  should  bring  passengers  from  a 
foreign  port  into  a  port  of  the  United  States  a  duty  of  fifty  cents 
for  every  passenger  who  was  not  a  citizen  of  this  country.  This 
was  held  to  be  a  valid  exercise  of  the  power  to  regulate  com- 
merce with  foreign  nations.37  It  was  contended  that  this  act 
violated  provisions  contained  in  numerous  treaties  with  friendly 
nations.  The  court  said  they  were  not  satisfied  that  the  act 
violated  any  of  such  treaties,  or  any  just  construction  of  them, 

33  People  v.  Potrerio  &  B.  V.  E.  E.       Hatch,  125  U.  S.  1,  8  Sup.  Ct.  Eep. 
Co.,   67   Cal.   166,   7   Pac.   446.     See,       811,  31  L.  ed.  629. 

also,  Scheurer  v.  Columbia  etc.  Co.,  11  33  Stats,  at  Large,  1151. 

Saw.  575,  27  Fed.  174;  State  v.  Dis-  36  Minnesota  Canal  &  Power  Co.  v. 

trict  Board,  76  Wis.  207,  20  Am.  St.  Pratt  (Minn.),  112  N.  W.  395. 

Kep.  58,  44  N.  W.   977,   7  L.  E.  A.  3T  Edye  v.  Eobertson  (Head  Money 

340;  Keator  etc.  Co.  v.  St.  Croix,  72  Cases),  112  U.  S.  580,  5  Sup.  Ct.  Eep. 

Wis.  84,  7  Am.  St.  Eep.  850,  38  N.  247,  28  L.  ed.  798.     See  as  to  state 

W.  537.  statutes,   "The  Passenger   Cases,"   7 

34  Willamette    Iron    Bridge    Co.    v.  How.  (U.  S.)  283,  12  L.  ed  702. 


203  HEAD    MONEY    CASES.  [§    175 

but  did  not  place  the  defense  of  the  act  against  this  objection 
upon  that  suggestion.  "We  are  of  the  opinion,"  said  the  court, 
"that  so  far  as  the  provisions  in  this  act  may  be  found  to  be 
in  conflict  with  any  treaty  with  a  foreign  nation,  they  must  pre- 
vail in  all  the  judicial  courts  of  this  country."  The  court  cited 
the  provision  of  the  Constitution  making  treaties  the  supreme  law 
of  the  land,  and  said : 

"A  treaty,  then,  is  a  law  of  the  land  as  an  Act  of  Congress  is, 
whenever  its  provisions  prescribe  a  rule  by  which  the  rights  of 
the  private  citizen  or  subject  may  be  determined.  And  when 
such  rights  are  of  a  nature  to  be  enforced  in  a  court  of  justice, 
that  court  resorts  to  the  treaty  for  a  rule  of  decision  for  the 
case  before  it,  as  it  would  to  a  statute.  But  even  in  this  aspect 
of  the  case,  there  is  nothing  in  this  law  which  makes  it  irrepeal- 
able  or  unchangeable.  The  Constitution  gives  it  no  superiority 
over  an  Act  of  Congress  in  this  respect,  which  may  be  repealed 
or  modified  by  an  Act  of  a  later  date.  Nor  is  there  anything  in 
its  essential  character  or  in  the  branches  of  the  government  by 
which  the  treaty  is  made,  which  gives  it  this  superior  sanctity. 
A  treaty  is  made  by  the  President  and  the  Senate.  Statutes 
are  made  by  the  President,  the  Senate  and  the  House  of  Repre- 
sentatives. The  addition  of  the  latter  body  to  the  other  two  in 
making  a  law  certainly  does  not  render  it  less  entitled  to  respect 
in  the  matter  of  its  repeal  or  modification  than  a  treaty  made 
by  the  other  two.  If  there  be  any  difference  in  this  regard,  it 
would  seem  to  be  in  favor  of  an  Act  in  which  all  three  of  the 
bodies  participate.  And  such  is,  in  fact,  the  case  in  a  declaration 
of  war,  which  must  be  made  by  Congress,  and  which,  when  made, 
usually  suspends  or  destroys  existing  treaties  between  the  Nations 
thus  at  war. ' ' 38 

So  the  act  of  Congress  commonly  called  the  "assisted  immigra- 
tion act  "  is  a  constitutional  exercise  of  the  power  conferred  upon 
Congress  to  regulate  commerce  with  foreign  nations.39  The  act 

38  Edye  v.  Kobertson,  112  U.  S.  580,  v.  United  States,   143  U.   S.  578,  12 

5  Sup.  Ct.  Rep.  247,  28  L.   ed.  798.  Sup.    Ct.   Eep.    525,    36   L.    ed.    269; 

See,  also,  Nishimura  Ekin  v.  United  Fong  Yue  Ting  v.  United  States,  149 

States,  142  U.  S.  659,  12  Sup.  Ct.  Eep.  U.  S.  698,  13  Sup.  Ct.  Eep.  1025,  37 

338,  35  L.  ed.  1149;   The  Chinese  Ex-  L.  ed.  916. 

elusion  Case,   130  U.   S.   600,  9   Sup.          39  United  States  v.  Craig,  28  Fed. 

Ct.  Eep.  628,  32  L.  ed.  1073;  Homer  795. 


§    176]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         204 

prohibiting  the  importation  of  alien  labor  under  contract  is  : 
valid  exercise  of  constitutional  power.40 

§  176.  Reconciling  act  and  treaty. — As  a  treaty  and  an  act 
of  Congress  stand  on  the  same  footing,  they  are  both  to  be  con- 
sidered as  statutes,  existing  on  the  same  subject.  When  in  con- 
flict, the  last  in  date  will  prevail.  But  courts  will  attempt  to 
reconcile  them,  if  possible,  so  that  both  may  stand  and  have 
effect,  and  the  rule  applied  in  the  construction  of  all  statutes  that 
repeals  by  implication  are  not  favored  will  be  enforced.  In  other 
words,  so  far  as  the  courts  are  concerned,  an  act  of  Congress  and 
a  treaty,  when  in  conflict,  present  the  ordinary  question  of  con- 
flicting laws,  the  last  modifying  or  superseding  the  former,  but 
both  to  be  made  effective  if  it  is  possible  to  do  so.41  The  courts 
will  not  impute  to  Congress  an  intention  to  violate  an  important 
provision  of  a  treaty.  It  must  clearly  and  unequivocally  appear 
that  such  was  the  intention,  and  when  it  is  claimed  that  Congress 
so  intended,  there  must  be  no  other  reasonable  construction  of  the 
language  which  is  supposed  to  constitute  the  violation.42 


40  In  re  Florio,  43  Fed.  115. 

41  In  re   Ah   Lung,   18   Fed.   28,   9 
Saw.  306;  In  re  Chin  A  On,  18  Fed. 
506,  9  Saw.  343;   In  re  Tung  Yeong, 
19  Fed.   185,  9  Saw.  620;   In  re  Ho 
King,    14    Fed.    726,     8     Saw.     438; 
Chinese  Merchant  »s  Case,  13  Fed.  605 ; 

7  Saw.  546;   Castro  v.  De.Uriate,  16 
Fed.    93;     Chew     Heong     v.     United 
States,  112  U.  S.  536,  5  Sup.  Ct.  Eep. 
255,  28  L.  ed.  770;  Whitney  v.  Rob- 
ertson,  124  U.  S.  195,  8  Sup.  Ct.  Eep. 
457,  31  L.  ed.  387;   Ropes  v.  Clinch, 

8  Blatchf.  309,  Fed.  Gas.  No.  12,041; 
Matter     of     Lobrasciano,     38     Misc. 
Rep.  415,  77  N.  Y.  Supp.  1040;  Baker 
v.  Newland,  25  Kan.  25. 

42  In  re  Chin  A    On,  18  Fed.  506,  9 
Saw.  343. 

Mr.  Duer,  in  his  lectures,  says: 
1  i  A  treaty,  in  its  general  sense,  is  a 
compact  entered  into  with  a  foreign 
power,  and  extends  to  all  matters 
which  are  usually  the  subject  of  com- 


pact between  independent  nations.  It 
is,  in  its  nature,  a  contract,  and  not 
a  legislative  act;  and  does  not,  ac- 
cording to  general  usage,  effect  of 
itself  the  objects  intended  to  be  ac- 
complished by  it,  but  requires  to  be 
carried  into  execution  by  some  sub- 
sequent act  of  sovereign  power  by  the 
contracting  parties,  especially  in  cases 
where  it  is  meant  to  operate  within 
the  territories  of  either  of  them. 
With  us,  however,  a  different  prin- 
ciple is  established,  in  certain  cases. 
It  has  been  settled  by  the  Supreme 
Court,  that,  inasmuch  as  the  Consti- 
tution declares  a  treaty  to  be  the  law 
of  the  land,  it  is  to  be  regarded  in 
Courts  of  Justice  as  equivalent  to  an 
act  of  Legislature,  whenever  it  oper- 
ates of  itself  without  requiring  the 
aid  of  any  legislative  provision. 
But  when  the  terms  of  any  treaty 
stipulation  import  an  executory  con- 
tract, it  addresses  itself  to  the  politi- 


205 


RECONCILING  ACT  AND  TREATY. 


[§    176 


"By  the  Constitution  a  treaty  is  placed  on  the  same  footing, 
and  made  of  like  obligation,  with  an  act  of  legislation.  Both 
are  declared  by  that  instrument  to  be  the  supreme  law  of  the 
land,  and  no  superior  efficacy  is  given  to  either  over  the  other. 
When  the  two  relate  to  the  same  subject,  the  courts  will  always 
endeavor  to  construe  them  so  as  to  give  effect  to  both,  if  that 
can  be  done  without  violating  the  language  of  either,  but  if  the 
two  are  inconsistent,  the  one  last  in  date  will  control  the  other, 
provided  always  the  stipulation  of  the  treaty  on  the  subject  is 


cal,  and  not  to  the  judicial,  depart- 
ment for  execution,  and  Congress 
must  pass  a  law  in  execution  of  the 
compact,  before  it  becomes  a  rule 
for  the  Courts.  The  Constitution 
does  not  expressly  declare  whether 
treaties  are  to  be  held  superior  to  the 
Acts  of  Congress,  or  whether  the  laws 
are  to  be  deemed  coequal  with,  or 
superior  to  treaties;  but  the  repre- 
sentation it  holds  forth  to  foreign 
powers  is  that  the  President,  by  and 
with  the  advice  and  consent  of  the 
Senate,  may  bind  the  nation  in  all 
legitimate  contracts;  and  if  pre-ex- 
isting laws,  contrary  to  a  treaty,  could 
only  be  abrogated  by  Congress,  this 
representation  would  be  fallacious. 
It  would  subject  the  public  faith  to 
just  imputation  and  reproach,  and 
destroy  all  confidence  in  the  national 
engagements.  The  immediate  opera- 
tion of  a  treaty  must,  therefore,  be 
to  overrule  all  existing  laws  incom- 
patible with  its  stipulations. 

''Nor  is  this  inconsistent  with  the 
power  of  Congress  to  pass  subsequent 
laws,  qualifying,  altering  or  wholly 
annulling  a  treaty;  for  such  an  au- 
thority, in  certain  cases,  is  supported 
on  grounds  wholly  independent  of  the 
treaty-making  power.  For,  as  Con- 
gress possesses  the  sole  right  of  de- 
claring war,  and  as  the  alteration  or 
abrogation  of  a  treaty  tends  to  pro- 
duce it,  the  power  in  question  may  be 


regarded  as  an  incident  to  that  of 
declaring  war.  The  exercise  of  such 
a  right  may  be  rendered  necessary  to 
the  public  welfare  and  safety,  by 
measures  of  the  party  with  whom  the 
treaty  was  made,  contrary  to  its  spirit, 
or  in  open  violation  of  its  letter;  and 
on  such  grounds  alone  can  this  right 
be  reconciled  either  with  the  provisions 
of  the  Constitution,  or  the  principles 
of  public  law.  A  memorable  instance 
has  occurred  in  our  history  of  the  an- 
nulment of  a  treaty  by  the  act  of  the 
injured  party,  in  the  year  1798, 
Congress  declared  that  the  treaties 
with  France  were  no  longer  obliga- 
tory on  the  United  States,  as  they 
had  been  repeatedly  violated  by  the 
French  Government,  and  our  just 
claims  for  reparation  disregarded. 
Nevertheless,  all  treaties,  as  soon  as 
ratified  by  competent  authority,  be- 
come of  absolute  efficacy,  and,  as 
long  as  they  continue  in  force,  are 
binding  upon  the  whole  nation.  If 
a  treaty  requires  the  payment  of 
money  to  carry  it  into  effect,  and  the 
money  can  only  be  raised  or  appro- 
priated by  an  Act  of  the  Legislature, 
it  is  morally  obligatory  upon  the  leg- 
islative power  to  pass  the  requisite 
law;  and  its  refusal  to  do  so  would 
amount  to  a  breach  of  the  public 
faith,  and  afford  just  cause  of  war. 
That  department  of  the  Government 
which  is  intrusted  with  the  power  of 


§§  177,  178]   CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.  206 

self-executing.  If  the  country  with  which  the  treaty  is  made  is 
dissatisfied  with  the  action  of  the  legislative  department,  it  may 
present  its  complaint  to  the  executive  head  of  the  government, 
and  take  such  other  measures  as  it  may  deem  essential  for  the 
protection  of  its  interests.  The  courts  can  afford  no  redress. 
Whether  the  complaining  nation  has  just  cause  of  complaint,  or 
our  country  was  justified  in  its  legislation,  are  not  matters  for 
judicial  cognizance. ' '  43 

§  177.  Absurd  conclusion  to  be  avoided. — In  the  construction 
of  statutes  or  of  a  statute  and  a  treaty,  an  unjust  or  absurd 
conclusion  must  be  avoided.  General  terms  are  to  be  limited  and 
construed  so  as  not  to  lead  to  injustice,  oppression  or  absurd 
consequences.44  Nor  will  an  act  be  given  a  retrospective  opera- 
tion if  thereby  rights  previously  vested  would  be  injuriously 
affected,  unless  such  construction  is  compelled  by  language  so 
clear  and  positive  as  to  permit  no  doubt  to  exist  that  such  was 
the  intention  of  the  legislature.45 

§  178.  Repeal  by  implication. — The  rule  prevailing  in  the  con- 
struction of  statutes  that  repeals  by  implication  are  not  favored, 
and  that  a  later  statute  will  not  impliedly  repeal  a  former,  unless 

making  treaties  may  bind  the  national  the  public  domain,  or  other  property 

faith  at  its  discretion;  for  the  treaty-  belonging  to   it;    but  if  there  be  no 

making    power    must    be    coextensive  express  provision  of  that  kind,  the  in- 

with     the    national     exigencies,     and  ference  is  that  it  has  confided  to  the 

necessarily  involves  in  it  every  branch  department,    charged    with    the    duty 

of  the  national  sovereignty,  of  which  and  the  power  of  making  treaties,  a 

the  operation  may  be  necessary  to  give  discretion  commensurate  with  all  the 

effect    to    negotiations    and    compacts  great    interests    of    the    nation."     A 

with    foreign    nations.     If    a    nation  Course   of  Lectures   on  the   Constitu- 

has   conferred  on  its  Executive  de-  tional  Jurisprudence    of    the    United 

partment,    without    reserve,  the  right  States,  2d  ed.,  228. 

of  treating  and  contracting  with  other  **  Mr.  Justice  Field,  in  Whitney  v. 

sovereignties,  it  is  considered  as  hav-  Kobertson,  124  U.  S.  190,  8  Sup.  Ct. 

ing    invested    it    with    all    the    power  Rep.   456,   31   L.   ed.   386.     See,  also, 

necessary   to   make   a  valid   contract,  Taylor  v.  Morton,  2   Curt.  454,  Fed. 

because  that  department  is  the  organ  Cas.   No.    13,799. 

of   the   Government   for  the  purpose,  **  Case  of  the  Chinese  Merchant,  13 

and    its    contracts    are    made    by   the  Fed.  605,  7  Saw.  546. 

deputed  will  of  the  nation.     The  fun-  45  Chew  Heong  v.  United  States,  112 

damental  laws  of  the  State  may  with-  U.  S.  536,  5  Sup.  Ct.  Eep.  255,  28  L. 

hold  from  it  the  power  of  alienating  ed.  770. 


207  REPEAL    BY    IMPLICATION.  [§    178 

the  repugnancy  between  them  is  irreconcilable,  applies  when  it 
is  alleged  that  a  treaty  and  an  act  of  Congress  are  in  conflict. 
A  later  treaty  will  not  be  considered  as  repealing,  by  implica- 
tion, an  earlier  statute,  unless  the  incompatibility  between  the 
two  is  so  great  that  the  enforcement  of  the  statute  will  be  impos- 
sible without  antagonizing  the  treaty.46 

The  treaty  of  July  12,  1889,  between  Great  Britain  and  the 
United  States,  provided  in  the  second  article:  "A  fugitive  crim- 
inal shall  not  be  surrendered,  if  the  offense  in  respect  of  which 
his  surrender  is  demanded  be  one  of  a  political  character,  or  if  he 
proves  that  the  requisition  for  his  surrender  has  in  fact  been 
made  with  a  view  to  try  to  punish  him  for  an  offense  of  a  political 
character,  No  person  surrendered  by  either  of  the  high  contract- 
ing parties  to  the  other  shall  be  triable  or  tried,  or  be  punished 
for  any  political  crime  or  offense,  or  for  any  act  connected  there- 
with, committed  previously  to  his  extradition.  If  any  question 
shall  arise  as  to  whether  a  case  comes  within  the  provisions  of  this 
article,  the  decision  of  the  authorities  of  the  government  in  whose 
jurisdiction  the  fugitive  shall  be  at  the  time  shall  be  final." 

The  third  article  declared  that:  "No  person  surrendered  by 
or  to  either  of  the  high  contracting  parties  shall  be  triable  or  be 
tried  for  any  crime  or  offense,  committed  prior  to  his  extradition, 
other  than  the  offense  for  which  he  was  surrendered,  until  he 
shall  have  had  an  opportunity  of  returning  to  the  country  from 
which  he  was  surrendered." 

The  sixth  article  provided  that:  "The  extradition  of  fugitives 
under  the  provisions  of  this  convention  and  of  the  said  tenth 
article  shall  be  carried  out  in  the  United  States  and  in  Her 
Majesty's  dominions,  respectively,  in  conformity  with  the  laws 
regulating  extradition  for  the  time  being  in  force  in  the  sur- 
rendering State." 

The  seventh  article  stipulated  that:  "The  provisions  of  the 
said  tenth  article  and  of  this  convention  shall  apply  to  persons 
convicted  of  crimes  therein  respectively  named  and  specified, 
whose  sentence  therefor  shall  not  have  been  executed.  In  a 
case  of  a  fugitive  criminal  alleged  to  have  been  convicted  of 
the  crime  for  which  his  surrender  is  asked,  a  copy  of  the  rec- 


46  Johnson    v.    Browne,    205    U.    S.      185  U.  S.  213,  22  Sup.  Ct.  Eep.  629 
309,  27  Sup.  Ct.  Kep.  539,  51  L.  ed.       46  L.  ed.  878. 
816;   United  States  v.  Lee   Yen   Tai, 


§    179]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         208 

ord  of  the  conviction  and  of  the  sentence  of  the  court  before 
which  such  convention  took  place,  duly  authenticated  shall  be 
produced,  together  with  the  evidence  proving  that  the  prisoner 
is  the  person  to  whom  such  sentence  refers." 

The  second  article,  it  will  be  observed,  declares  that  no  person 
surrendered  shall  be  triable  or  tried  or  be  punished  for  any  politi- 
cal crime  or  offense.  But  in  the  third  article  it  is  provided  that 
no  person  surrendered  shall  be  triable  or  be  tried  for  any  offense 
committed  prior  to  the  extradition,  other  than  the  offense  for 
which  he  was  surrendered,  until  he  shall  have  had  an  oppor- 
tunity of  returning  to  the  country  from  which  he  was  surren- 
dered. It  will  be  noticed  that  this  article  uses  the  words  "  triable 
or  tried,"  and  omits  the  words  "or  be  punished.7'  A  prisoner 
sued  out  a  writ  of  habeas  corpus,  and  it  appeared  that  two  indict- 
ments had  been  found  against  him,  on  one  of  which  he  was  tried 
and  convicted.  He  appealed,  the  conviction  was  affirmed,  and 
then  he  made  application  for  a  certiorari  to  the  supreme  court  of 
the  United  States  to  review  the  judgment  of  conviction,  and 
pending  a  review  of  his  case,  he  having  been  released  on  bail, 
fled  to  Canada.  Extradition  proceedings  were  instituted  to  pro- 
cure his  return  upon  the  judgment  of  conviction,  but  it  was  de- 
cided by  the  British  tribunals  that  the  crime  set  out  in  the  indict- 
ment was  not  provided  for  by  the  treaty.  His  extradition  was 
then  sought  upon  the  second  indictment,  and  granted.  He  w^as 
surrendered  to  an  agent  of  the  United  States,  and  taken  to  New 
York,  where  he  was  arrested  upon  a  warrant  based  upon  the 
prior  indictment  and  conviction.  It  was  decided  that  he  could 
not  be  punished  for  an  offense  other  than  that  for  which  his 
extradition  had  been  demanded,  although  he  had  been  convicted 
and  sentenced  for  such  offense  prior  to  his  extradition. 

§  179.  Fair  construction  not  permitting  arrest  on  prior  con- 
viction.— The  case  involved  the  construction  of  the  treaty,  and 
it  was  contended  that  as  the  third  article  did  not  in  so  many 
words  expressly  prohibit  the  punishment  for  another  offense  for 
which  a  person  had  been  convicted,  a  requisition  might  be  ob- 
tained for  one  crime  under  that  article,  and  when  possession  oJ 
the  person  is  obtained  by  this  means,  he  might  be  punished  for 
another  and  totally  different  crime  of  which  he  had  been  con- 
victed prior  to  his  extradition. 


209  REASONING  OF  THE  COURT.  [§    180 

The  court  said  that  if  the  question  had  arisen  under  the 
former  treaty  of  1842,  known  as  the  Ashburton  treaty,47  and  the 
sections  of  the  Revised  Statutes  relating  to  extradition,48  his  im- 
prisonment would  clearly  have  been  illegal.  The  court  observed 
that  if  the  words  "or  be  punished"  were  contained  in  the  third 
article,  the  question  would  not  arise,  but  that  it  was  satisfied  that 
the  whole  treaty,  taken  in  connection  with  that  of  1842,  fairly  con- 
strued, would  not  permit  his  imprisonment  upon  the  former 
charge.49 

§  180.  Reasoning  of  the  court. — The  court,  in  passing  upon 
the  point,  said  that  the  mere  failure  to  use  the  words  "or  be 
punished"  in  the  third  article  of  the  treaty  did  not  so  far  change 
and  alter  "the  manifest  scope  and  object"  of  the  two  treaties  as 
to  render  legal  the  imprisonment  on  the  former  conviction.  The 
opinion  of  the  court  was  delivered  by  Mr.  Justice  Peckham,  who 
said:  "The  general  scope  of  the  two  treaties  makes  manifest  an 
intention  to  prevent  a  State  from  obtaining  jurisdiction  of  ;:an 
individual  whose  extradition  is  sought  on  one  ground,  and  for 
one  express  purpose,  and  then  having  obtained  possession  of  his 
person  to  use  it  for  another  and  different  purpose.  Why,  the 
words  were  left  out  in  the  third  article  of  the  convention  of  1889, 
when  their  insertion  would  have  placed  the  subject  entirely  at 
rest,  may  perhaps  be  a  matter  of  some  possible  surprise,  yet  their 
absence  cannot  so  far  alter  the  otherwise  plain  meaning  of  the 
two  treaties  as  to  give  them  a  totally  different  construction. 

"In  addition  to  the  provisions  of  the  treaty  of  1889,  we  find 
still  in  existence  the  already  mentioned  sections  of  the  Revised 
Statute,  which  prohibit  a  person's  arrest  or  trial  for  any  other 
offense  than  that  with  which  he  was  charged  in  the  extradition  pro- 
ceedings, until  he  shall  have  had  a  reasonable  time  to  return 
unmolested  from  the  country  to  which  he  was  brought. 

"It  is  argued,  however,  that  the  sections  in  question  have 
been  repealed  by  implication  of  the  treaty  or  convention  of  1889, 
and  that  the  respondent,  therefore,  cannot  obtain  any  benefit 
from  them.  We  see  no  fair  or  reasonable  ground  upon  which  to 
base  the  claim  of  repeal.  Repeals  by  implication  are  never 

47  8  Stats,  at  Large,  572,  576.  49  Johnson  v.  Browne,  205  TJ.  S.  309, 

48  Kev.  Stats.,  sees.  5272,  5275.  27  Sup.  Ct.  Eep.  539,  51  L.  ed.  816. 

Treaties — 14 


§    181]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         210 

favored,  and  later  treaty  will  not  be  regarded  as  repealing  an 
earlier  statute  by  implication,  unless  the  two  are  absolutely  in- 
compatible, and  the  statute  cannot  be  enforced  without  antag- 
onizing the  treaty.50  If  both  can  exist,  the  repeal  by  implica- 
tion will  not  be  adjudged.  These  sections  are  not  incompatible 
with  the  treaty  or  in  any  way  inconsistent  therewith.  We  find 
nothing  in  the  treaty  which  provides  that  a  person  shall  be 
surrendered  for  one  offense,  and  then  that  he  may  be  punished 
for  another,  such  as  is  the  case  here.  The  most  that  can  be  as- 
serted is  that  an  inference  to  that  effect  perhaps  might  be  drawn 
from  the  absence  in  article  III  of  positive  language  preventing 
such  punishment.  But  that  slight  and  doubtful  inference,  resting 
on  such  an  insufficient  foundation  is  inadequate  to  overcome  the 
positive  provisions  of  the  statute  and  the  otherwise  general  scope 
of  both  treaties,  which  are  inconsistent  with  the  existence  of 
such  right." 

§  181.    Extension  of  treaty  by  doubtful  construction. — The 

court  declared  that  it  was  essential  that  in  the  construction  of 
treaties,  the  highest  good  faith  should  be  observed,  and  that  in 
case  of  extradition,  its  effect  should  not  be  extended  by  doubt- 
ful construction.  Mr.  Justice  Peckham,  referring  to  the  conten- 
tion that  the  construction  contended  for  was  exceedingly  tech- 
nical, and  tended  "to  the  escape  of  criminals  on  the  fine  subtle- 
ties of  statutory  construction,  and  should  not,  therefore,  be 
adopted,"  observed:  "While  the  escape  of  criminals,  of  course, 
is  to  be  very  greatly  deprecated,  it  is  still  most  important  that 
a  treaty  of  this  nature  between  sovereignties  should  be  con- 
strued in  accordance  with  the  highest  good  faith,  and  that  it 
should  not  be  sought  by  doubtful  construction  of  some  of  its  pro- 
visions to  obtain  the  extradition  of  a  person  for  one  offense,  and 
then  punish  him  for  another  and  different  offense.  Especially 
should  this  be  the  case  where  the  government  surrendering  the 
person  has  refused  to  make  the  surrender  for  the  other  offense  on 
the  ground  that  such  offense  was  not  one  covered  by  the  treaty. 
"Our  attention  has  been  directed  to  various  other  treaties 
between  this  government  and  other  nations,  where  provision  is 

60  Citing  United  States  v.  Lee  Yen       Tai,  185  U.  S.  213,  22  Sup.  Ct.  Eep. 
629,   46  L.   ed.   878. 


211    .        ABROGATION  MUST  CLEARLY  APPEAR.          [§  182 

expressly  made  in  regard  to  punishment.  They  frequently  pro- 
vide that  no  person  shall  be  triable  or  tried  'or  be  punished'  for 
any  other  offense  than  that  for  which  he  was  delivered  up,  until 
he  has  had  an  opportunity  of  returning  to  the  country  from  which 
he  was  surrendered.  But  because  in  some  of  the  treaties  the 
words  'or  be  punished'  are  contained,  we  are  not  required  to 
hold  that  in  the  case  before  us  the  absence  of  those  words  per- 
mits such  punishment,  when  that  construction  is,  as  we  have  said, 
contrary  to  the  manifest  meaning  of  the  whole  treaty,  and  also 
violates  the  statutes  above  cited."51 

§  182.  Abrogation  must  clearly  appear. — While  there  can  be 
no  question  that  a  later  statute  may  abrogate  a  treaty,  "never- 
theless the  purpose  by  statute  to  abrogate  a  treaty  or  any  des- 
ignated part  of  a  treaty,  or  the  purpose  by  treaty  to  supersede 
the  whole  or  a  part  of  an  act  of  Congress,  must  not  be  lightly  as- 
sumed, but  must  appear  clearly  and  distinctly  from  the  words 
used  in  the  statute  or  in  the  treaty. ' ' 52  The  supreme  court  of 
the  United  States  has  decided  that  a  treaty  with  China  and  an 
act  of  Congress  prescribing  the  certificate  to  be  produced  by  a 
Chinese  laborer  as  the  only  evidence  permissible  to  establish  his 
right  of  re-entry  into  the  United  States  could  both  stand.53  Mr. 
Justice  Harlan,  who  delivered  the  opinion  of  the  court,  said: 
''Aside  from  the  duty  imposed  by  the  Constitution  to  respect 
treaty  stipulations  when  they  become  the  subject  of  judicial  pro- 
ceedings, the  court  cannot  be  unmindful  of  the  fact  that  the 
honor  of  the  Government  and  people  of  the  United  States  is  in- 
volved in  every  inquiry  whether  rights  secured  by  such  stipula- 
tions shall  be  recognized  and  protected.  And  it  would  be  want- 
ing in  proper  respect  for  the  intelligence  and  patriotism  of  a  co- 
ordinate department  of  the  Government  were  it  to  doubt,  for  a 
moment,  that  these  considerations  were  present  in  the  minds  of 
its  members  when  the  legislation  in  question  was  enacted."54 

31  Johnson  v.  Browne,  205  U.  S.  53  Chew  Heong  v.  United  States, 

309,  27  Sup.  Ct.  Eep.  539,  51  L.  eel.  112  U.  S.  536,  5  Sup.  Ct.  Eep.  225, 

816.  28  L.  ed.  770. 

52  United  States  v.  Lee  Yen  Tai,  M  Chew  Heong  v.  United  States, 

185  U.  S.  213,  22  Sup.  Ct.  Eep.  629,  112  U.  S.  536,  5  Sup.  Ct.  Eep.  225, 

46  L.  ed.  878.  28  L.  ed.  770. 


§    183]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         212 

The  court  said  that  the  utmost  that  could  be  asserted  was  that 
there  appeared  to  be  an  apparent  conflict  between  the  mere 
words  of  the  statute  and  the  treaty,  and  that  by  implication  the 
treaty  was  in  a  measure  abrogated.  But  after  referring  to  the 
rule  that  repeals  by  implication  are  not  favored,  and  that  if  by 
any  reasonable  construction  the  two  statutes  can  stand  together, 
they  must  be  enforced,  the  court  proceeded  to  say:  "When  the 
Act  of  1882  was  passed,  Congress  was  aware  of  the  obligation 
this  Government  had  recently  assumed,  by  solemn  Treaty,  to  ac- 
cord to  a  certain  class  of  Chinese  laborers  the  privilege  of  going 
from  and  coming  to  this  country  at  their  pleasure.  Did  it  in- 
tend, within  less  than  a  year  after  the  ratification  of  the  Treaty 
and  without  so  declaring  in  unmistakable  terms,  to  withdraw  that 
privilege  by  the  general  words  of  the  1st  and  2nd  sections  of  that 
Act?  Did  it  intend  to  do  what  would  be  inconsistent  with  the 
inviolable  fidelity  with  which,  according  to  the  established  rules 
of  international  law,  the  stipulations  of  treaties  should  be  ob- 
served? These  questions  must  receive  a  negative  answer.  The 
presumption  must  be  indulged  that  the  broad  language  of  these 
sections  was  intended  to  apply  to  those  Chinese  laborers  whose 
coming  to  this  country  might,  consistent  with  the  Treaty,  be  rea- 
sonably regulated,  limited  or  suspended,  and  not  to  those  who, 
by  the  express  words  of  the  same  Treaty,  were  entitled  to  go  and 
come  of  their  own  free  will,  and  enjoy  such  privileges  and  im- 
munities as  were  accorded  to  the  citizens  and  subjects  of  the 
most  favored  Nation. ' '  55 

§  183.    Dissenting  views  of  Justices  Field  and  Bradley. — Mr. 

Justice  Field  dissented  from  the  opinion  of  the  majority  of  the 
court  construing  the  act  of  Congress,  restricting  the  immigration 
of  Chinese  laborers.  He  said  that  the  construction  adopted  by 
the  majority  of  the  court  appeared  to  be  in  conflict  with  the 
language  of  the  act,  "and  to  require  the  elimination  of  entire 
clauses  and  the  interpolation  of  new  ones.  It  renders  nugatory 
whole  provisions  which  were  inserted  with  sedulous  care.  The 
change  thus  produced  in  the  operation  of  the  act  is  justified  on 
the  theory  that  to  give  it  any  other  construction  would  bring  it 
in  conflict  with  the  treaty;  and  that  we  are  not  at  liberty  to 

55  Chew  Heong,   112  U.   S.   536,  5     Sup.  Ct.  Eep.  225,  28  L.  ed.  770. 


213         DISSENTING   VIEWS    OF    JUSTICES   FIELD    AND   BRADLEY.       [§    183 

suppose  that  Congress  intended  by  its  legislation  to  disregard  any 
treaty  stipulations." 

He  adverted  to  the  language  of  the  circuit  court  that  the  act 
of  Congress,  construed  according  to  the  natural  meaning  of 
its  terms,  violates  the  treaty  and  the  national  faith,  and  that  the 
majority  of  the  court  adopting  a  similar  construction  of  the 
treaty  had  narrowed  the  meaning  of  the  act  so  as  measurably 
to  frustrate  its  intended  operation,  and  thus  proceeded:  "If, 
however,  the  Act  of  Congress  be  in  conflict  with  the  Treaty 
upon  the  immigration  of  Chinese  laborers,  it  must  control  as 
being  the  last  expression  of  the  sovereign  will  of  the  country. 
And  while  I  agree  with  all  that  is  said  in  the  opinion  of  the 
Court,  as  to  the  sanctity  of  the  public  faith,  I  must  be  permitted 
to  suggest  that,  if  the  legislative  department  sees  fit  for  any 
reason  to  refuse,  upon  a  subject  within  its  control,  compliance 
with  the  stipulations  of  a  Treaty,  or  to  abrogate  them  entirely, 
it  is  not  for  this  court  or  any  other  court  to  call  in  question  the 
validity  or  wisdom  of  its  action  and  impute  unworthy  motives 
to  it.  It  should  be  presumed  that  good  and  sufficient  reasons  con- 
trolled and  justified  its  conduct.  If  the  Nation  with  which  the 
Treaty  is  made  objects  to  the  legislation,  it  may  complain  to  the 
executive  head  of  our  Government  and  take  such  measures  as  it 
may  deem  advisable  for  its  interests.  But  whether  it  has  just 
cause  of  complaint,  or  whether,  in  view  of  its  action,  adverse  leg- 
islation on  our  part  be  or  be  not  justified,  is  not  a  matter  for 
judicial  cognizance  or  consideration.  A  treaty  is,  in  its  nature, 
a  contract  between  two  or  more  Nations,  and  is  so  considered 
by  writers  on  public  law ;  and  by  the  constitution  it  is  placed 
on  the  same  footing  and  made  of  like  obligation  as  a  law  of  the 
United  States.  Both  are  declared  in  that  instrument  to  be  the 
supreme  law  of  the  land,  and  no  paramount  authority  is  given  to 
either  over  the  other. 

'  *  Some  treaties  operate  in  whole  or  in  part  by  their  own  force, 
and  some  require  legislation  to  carry  their  stipulations  into  effect. 
If  that  legislation  imposed  duties  to  be  discharged  in  the  future, 
it  may  be  repealed  or  modified  at  the  pleasure  of  Congress.  If 
the  Treaty  relates  to  a  subject  within  the  powers  of  Congress, 
and  operates  by  its  own  force,  it  can  only  be  regarded  by  the 
courts  as  equivalent  to  a  legislative  Act.  Congress  may,  as  with 
an  ordinary  statute,  modify  its  provisions  or  supersede  them  alto- 


§    183]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         214 

gether.  The  immigration  of  foreigners  to  this  country,  and  the 
conditions  upon  which  they  shall  be  permitted  to  come  or  re- 
main, are  proper  subjects  both  of  legislation  and  of  treaty  stipu- 
lation. The  power  of  Congress,  however,  over  the  subject  can 
neither  be  taken  away  nor  impaired  by  any  treaty."56 

He  said  that  if  the  construction  which  he  gave  worked  a  hardship 
to  any  persons,  it  was  for  Congress,  and  not  for  the  court,  to  afford 
the  remedy.  "This  court  has  no  dispensing  power  over  the  pro- 
visions of  an  act  of  Congress.  It  is  itself  only  the  servant  of  the 
law;  bound  to  obey  it,  not  to  evade  or  make  it." 

Mr.  Justice  Bradley  concurred  with  Mr.  Justice  Field  in  dis- 
senting from  the  judgment,  and  remarked:  "It  may  be  that  this 
view  of  the  law  makes  it  conflict  with  the  treaty ,  though  Justice 
Field  has  shown  strong  reasons  to  the  contrary,  but  whether  it 
does  so  or  not,  I  think  it  is  the  true  construction;  and  the  rule 
is  now  settled  that  Congress  may,  by  law,  overrule  a  treaty 
stipulation,  although,  of  course,  it  should  not  be  done  without 
strong  reasons  for  it;  and  an  act  of  Congress  should  not  be  con- 
strued as  having  that  effect  unless  such  be  its  plain  meaning. ' ' 57 
If  it  is  alleged  that  a  conflict  exists  between  a  treaty  requiring 
ratification  and  a  legislative  act  of  amendment,  the  courts,  in 
their  construction,  will  endeavor  to  give  effect  to  both,  but  if 
they  cannot  be  reconciled,  will  give  effect  preferably  to  the 
legislative  enactment.58 

88  Chew  Heong  v.  United  States,  is  investigated  with  care,  and  con- 
supra,  sidered  in  its  full  extent.  Other 

57  Chew  Heong  v.   United  States,  principles  which   may   serve   to   illus- 

supra.  trate  it  are  considered  in  their  rela- 

As  said  by  Chief  Justice  Marshall:  tion   to    the   case    decided,    but    their 

' l  It  is  a  maxim  not  to  be  disregarded,  possible    bearing    on    all    other    cases 

that     general    expressions,     in     every  is    seldom    completely    investigated." 

opinion,   are   to   be   taken  in   connec-  Cohens  v.  Virginia   (1821),  19  U.  S. 

tion  with  the  case  in  which  those  ex-  (6  Wheat.)    264,   399,   5  L.   ed.   257, 

pressions    are   used.     If   they   go    be-  290.     The  above  language  was  quoted 

yond  the  case,  they  may  be  respected,  with    approval    in    United    States    v. 

but   ought    not    to    control   the    judg-  Wong   Kim   Ark,   169   U.    S.   679,   18 

ment  in  a  subsequent  suit  when  the  Sup.  Ct.  Eep.  456,  42  L.  ed.  901. 
very  point  is  presented  for  decision.  "  Wadsworth  v.  Boysen,  148  Fed. 

The  reason  of  this  maxim  is  obvious.  771. 
The  question  actually  before  the  court 


215          REPEAL  OF  STATUTES  BY  IMPLICATION.   [§§  184,  185 

§  184.     Same  rule  as  to  repeal  of  statutes  by  implication. — As 

a  treaty  and  an  act  of  Congress  are  entitled  to  equal  considera- 
tion, and  neither  is  in  itself  paramount  to  the  other,  the  rule 
for  their  construction,  when  in  conflict,  or  for  determining 
whether  one  is  repealed  by  the  other  by  implication,  is  the  same 
as  if  the  treaty  and  act  of  Congress  were  both  statutes.  It  will 
not  be  necessary  to  enter  into  detail  as  to  the  rule  of  construc- 
tion recognized  when  it  is  claimed  that  a  statute  is  repealed  by 
implication,  but  it  will  be  sufficient  to  quote  Mr.  Justice  Story, 
who,  in  speaking  of  a  repeal  of  a  statute  by  implication,  in  de- 
livering the  opinion  of  the  court,  said:  "That  it  has  not  been 
expressly  or  by  direct  terms  repealed  is  admitted;  and  the 
question  resolves  itself  into  the  narrow  inquiry  whether  it  has 
been  repealed  by  necessary  implication.  We  say  by  necessary 
implication,  for  it  is  not  sufficient  to  establish  that  subsequent 
laws  cover  some,  or  even  all,  of  the  cases  provided  for  by  it,  for 
they  may  be  merely  affirmative  or  cumulative  or  auxiliary.  But 
there  must  be  a  positive  repugnancy  between  the  provisions  of 
the  new  laws  and  those  of  the  old,  and  even-  then  the  old  law  is 
repealed  by  implication  only  pro  tanto,  to  the  extent  of  the  repug- 
nancy. ' ' 59 

"It  must  appear  that  the  later  provision  is  certainly  and  clearly 
in  hostility  to  the  former.  If  by  any  reasonable  construction,  the 
two  statutes  can  stand  together,  they  must  so  stand.  If  harmony 
is  impossible,  and  only  in  that  event,  the  former  law  is  repealed 
in  part,  or  wholly,  as  the  case  may  be."60 

§  185.  Self-executing  treaties.— A  treaty  which  requires  no 
further  legislation  to  make  it  effective  becomes,  after  its  ratifi- 
cation, the  law  of  the  land,  and  will  be  enforced  by  the  courts  as 
a  law  of  Congress.61  But  where  the  treaty  is  not  complete  in 

59  Wood  v.  United  States,  16  Pet.  ed.  812;  Harford  v.  United  States,  8 
362,  10  L.  ed.  993.  Cranch,  109,  3  L.  ed.  504. 

60  State  v    Stoll.  17  Wall.  425,  21  61  United  States  v.  Forty-three  Gal- 
L.  ed.  654.    'See,  also,  Ex  parte  Yer-  Ions  of  Whisky,  93  U.  S.  188,  23  L. 
ger,  8  Wall.  105,  19  L.  ed.  339;   Ex  ed.     846;     Chew    Heong    v.     United 
par  e    Crow   Dog     109   U.    S.    570,    3  States,  112  U.  S   536,  5  Sup    Ct.  Eep 
Sup.   Ct.   Kep.   396,   27  L.   ed.   1035;  ^  28  L.  ed.  770;  In  re  Meter    17 

Afl    TT      Q        1  A(\      0/LT  Fed"     CaS-     N0> 

Arthur  v.  Homer,  96  U.  S.   140,  24  L.      ^  ^          g 


§    186]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         216 

itself,  but  requires  further  legislation  to  make  it  effective,  it 
cannot,  of  course,  be  enforced  by  the  courts  until  such  legislation 
is  had.62  A  familiar  instance  is  where  an  appropriation  of  money 
is  necessary  to  carry  a  treaty  into  effect.  Until  such  appropria- 
tion is  made,  the  treaty  is  not  perfect,  as  under  the  Constitution 
money  cannot  be  appropriated  by  the  treaty-making  power.63 
Where,  by  the  treaty  with  Spain,  the  island  of  Porto  Rico  was 
ceded  to  the  United  States,  although  it  had  not  been  formally  em- 
braced by  Congress  within  the  customs  union  of  the  states,  it 
ceased  to  remain  foreign  territory  within  the  meaning  of  the 
tariff  act  providing  for  the  imposition  of  duties  upon  articles  im- 
ported from  foreign  countries.64 

§  186.  Chinese  exclusion  cases. — As  showing  that  an  act  of 
Congress  in  contravention  of  the  terms  of  a  treaty  must  be 
upheld  when  the  language  of  the  act  is  clear  and  explicit,  refer- 
ence may  be  made  to  the  legislation  providing  for  the  exclusion 
of  Chinese  from  the  United  States.  It  is  the  inherent  and  in- 
alienable right  of  every  sovereign  and  independent  nation  to 
exclude  or  expel  aliens  or  any  class  of  aliens.  This  right  may  be 
exercised  in  war  or  in  peace,  and  either  absolutely  or  upon  speci- 
fied conditions.  This  power  under  the  Constitution  of  the  United 
States  is  vested  in  the  political  department  of  the  government, 
and  may  be  exercised  either  by  a  treaty  or  by  an  act  of  Con- 
gress, and  is  to  be  carried  into  effect  by  the  executive  authority 
according  to  the  regulation  established,  except  so  far  as  inter- 
vention by  the  judicial  department  is  authorized  by  treaty  or 
by  statute,  or  is  required  by  the  Constitution.  Congress  may  ex- 
ercise its  power  to  expel  or  exclude  aliens  entirely  through  execu- 
tive officers  or  may  call  in  the  assistance  of  the  judiciary  to 
ascertain  any  contested  facts,  on  the  existence  of  which  the  right 
of  an  alien  to  remain  is,  by  the  act  of  Congress,  dependent.65 

62  Foster  v.  Neilson,  2  Pet.  253,  7       1,    21    Sup.   Ct.   Kep.    743,   45   L.   ed. 
L.  ed.  415;  Whitney  v.  Eobertson,  124       1041. 

U.   S.   190,   8   Sup.   Ct.   Eep.   457,   31  »  ±'ong  Yue  Ting  v.  United  States, 

L.  ed.  387.  149  U.  S.  698,  13  Sup.  Ct.  Rep.  1016, 

63  Turner  v.  American  Baptist  Mis-  37  L.  ed.  905;  United  States  v.  Ngum 
sionary    Union,    5    McLean    (U.    S.),  Lun  May,   153  Fed.   209.     See  as   to 
347,   Fed.  Cas.  No.   14,251.  other  cases,  Chae  Chan  Pang  v.  United 

64  De  Lima  v.   Bidwell>   182   U.   S.  States,    130    U.    S.    581,    9    Sup.    Ct. 


217       CHINESE  CHILDREN  BORN  IN  THE  UNITED  STATES.       [§§    187,    188 

§  187.  Chinese  children  born  in  the  United  States. — The  acts 
excluding  Chinese  from  the  United  States  do  not  apply  to  a  per- 
son born  within  the  United  States  of  Chinese  parents,  who  reside 
therein  and  who  are  not  engaged  in  any  diplomatic  or  official 
capacity  under  the  Emperor  of  .China.  Such  a  person  is  a  cit- 
izen of  the  United  States.66  Under  the  common  law  a  child  born 
within  the  jurisdiction  of  the  United  States  is  born  a  subject  or 
citizen  thereof,  without  consideration  of  the  political  status  of  its 
parents.67  Except  for  punishment  of  crime,  no  citizen  can  be 
excluded  from  the  United  States.68  An  act  of  Congress  that 
would  attempt  to  inflict  on  a  citizen  of  the  United  States  the  pun- 
ishment of  banishment  or  exile,  on  account  of  his  race  or  color, 
or  for  any  cause,  would  be  a  bill  of  attainder  within  the  pro- 
hibition of  the  federal  Constitution,  and  invalid.69 

§  188.  Application  of  fourteenth  amendment. — By  the  four- 
teenth amendment  to  the  Constitution  of  the  United  States,  the 
laws  providing  for  the  exclusion  of  Chinese  laborers  have  no  ap- 
plication to  a  person  born  in  the  United  States  and  subject  to  its 
jurisdiction,  notwithstanding  that  his  parents,  who  were  Chinese, 

Eep.  623,  32  L.  ed.  1068 ;  In  re  Lau  sending  out  of  the  country  such  aliens 
Ow  Beu,  141  U.  S.  583,  12  Sup.  Ct.  as  come  here  in  violation  of  law,  and 
Rep.  43,  35  L.  ed.  868,  144  U.  S.  47,  commit  the  enforcement  of  such  pro- 
12  Sup.  Ct.  Rep.  517,  36  L.  ed.  340;  visions,  conditions  and  regulations  ex- 
Chew  Heong  v.  United  States,  112  clusively  to  executive  officers,  with- 
U.  S.  536,  5  Sup.  Ct.  Rep.  255,  28  out  judicial  intervention,  are  prin- 
L.  ed.  770;  Lem  Moon  Sing  v.  United  ciples  firmly  established  by  the  de- 
States,  158  U.  S.  538,  15  Sup.  Ct.  cisions  of  this  court." 
Rep.  967,  39  L.  ed.  1082 ;  Wong  Wing  €6  In  re  Yung  Sing  Hee,  36  Fed. 
v.  United  States,  163  U.  S.  228,  16  437,  13  Saw.  482;  In  re  Look  Tin 
Sup.  Ct.  Rep.  977,  41  L.  ed.  140;  Sing,  21  Fed.  905,  10  Saw.  353;  In 
United  States  v.  Gue  Lim,  176  U.  re  Wy  Shing,  36  Fed.  553,  13  Saw. 
S.  459,  20  Sup.  Ct.  Rep.  415,  44  L.  ed.  530 ;  Ex  parte  Chin  King,  35  Fed. 
544.  354,  13  Saw.  333. 

It  was  said  in  the  Japanese  immi-  CT  McKay  v.  Campbell,  2  Saw.  118, 

grant  case,  Yamataya  v.  Fisher,  189  Fed.  Gas.  No.  8840;   In  re  Look  Tin 

U.   S.   86,   23   Sup.   Ct.   Rep.   611,  47  Sing,    21    Fed.    905,    10    Saw.    353; 

L.  ed.  721 :   "  That  Congress  may  ex-  Lynch  v.  Clarke,  1  Sand.  Ch.  583. 

elude  aliens  of  a  particular  race  from  68  In   re   Wy   Shing,   36   Fed.    553, 

the  United  States,  prescribe  the  terms  13  Saw.  530. 

and    conditions    upon    which    certain  *  In  re   Yung  Sing   Hee,  36  Fed. 

classes    of    aliens    may    come    to    this  437,  13  Saw.  482. 
country,      establish      regulations      for 


§    189]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         218 

were  not  permitted  by  the  naturalization  laws  to  become  citi- 
zens.70 The  interpretation  of  the  Constitution  of  the  United 
States  should  be  made  in  the  light  of  the  common  law,  by  which 
every  child  born  in  England  of  alien  parents  was  a  natural-born 
subject,  unless  it  was  the  child  of  an  ambassador  or  other  diplo- 
matic agent  of  a  foreign  state,  or  of  an  alien  enemy  occupying 
in  hostility  the  place  of  birth  of  the  child.  At  the  time  when 
the  fourteenth  amendment  to  the  Constitution  was  adopted  there 
did  not  exist  any  settled  and  definite  rule  of  international  law 
inconsistent  with  the  ancient  rule  that  citizenship  arose  by  birth 
within  the  dominion.  This  amendment  did  not  impose  any  new 
restrictions  upon  citizenship,  but  affirmed  existing  law,  and  de- 
clared existing  rights,  so  far  as  citizenship  was  concerned,  and 
was  intended  to  allay  doubts  and  to  settle  controversies  which 
had  arisen.  It  follows,  therefore,  that  the  Chinese  exclusion  acts 
passed  after  the  adoption  of  this  amendment  cannot  control  its 
meaning  or  lessen  its  effect,  but  their  construction  and  execution 
must  be  in  subordination  to  its  provisions.  While  Congress  has 
power  to  regulate  naturalization,  the  fourteenth  amendment  con- 
fers upon  it  no  power  to  restrict  the  effect  of  birth,  which  by  the 
Constitution  is  declared  to  be  a  sufficient  right  to  citizenship.71 

§  189.  Right  to  return. — The  act  of  exclusion,  unless  required 
by  its  language,  will  not  be  given  a  retrospective  operation.72 
Hence,  Chinese  laborers  who  at  the  date  of  the  treaty  with  China 

10  Lem  Hing  Dun  v.  United  States,  against    a    person    claiming    that    he 

49  Fed.  148,  1  C.  C.  A.  210,  7  U.  S.  was    born    in    San    Francisco    should 

App.    31;    Gee   Fook   Sing   v.   United  not  be  disturbed  on  appeal,  Gee  Fook 

States,  49  Fed.  146,  1  C.  C.  A.  211,  Sing  v.  United  States,  49   Fed,   146, 

7  U.  S.  App.  27.  1  C.  C.  A.  211,  7  U.  S.  App.  27;  Lem 

71  United  States  v.  Wong  Kim  Ark,  Hing  Dun  v.  United  States,  49  Fed. 

169  U.  S.  649,  18  Sup.  Ct.  Eep.  456,  148,  1  C.  C.  A.  210,  7  U.  S.  App.  31; 

42    L.    ed.    891.     See,    where    it    was  Lee  Foo   v.   United   States,   Id.     For 

held    that    the    evidence    was    not  a    proceeding    for    deportation    of    a 

sufficient   to  establish  the  citizenship  Chinese    in    which    the    evidence    was 

of    a    Chinese   person    sixteen   years  held   to   be  insufficient   to   show  that 

of  age,  who  claimed  that  he  was  born  such  person  was  born  in  the  United 

in  the  United  States,  and  therefore  a  States,  see  Ho  Ngen  Jung  v.  United 

citizen,  Quock  Ting  v.  United  States,  States,  153  Fed.  232. 

140  U.  S.  417,  11  Sup.  Ct.  Eep.  733,  "  Chew    Heong    v.    United    States, 

35    L.    ed.    501.     See,    also,   the    case  112  U.  S.  536,  5   Sup.  Ct.  Rep.  255, 

where    it    was    held    that    a    finding  28  L.  ed.   770. 


219  POWER  OF  STATE  TO  EXCLUDE.  [§  190 

were  in  the  United  States,  but  who  departed  before  the  exclusion 
act  took  effect,  are  entitled  to  land  without  producing  the  certifi- 
cate required  by  the  act.73  Chinese  subjects,  shipping  on  an 
American  vessel,  at  an  American  port,  for  a  round  voyage,  and 
who  do  not  land  at  any  foreign  port,  are  not  considered  as  de- 
parting from  the  United  States.74  A  person,  by  neglecting  to  ap- 
ply for  the  certificate  required  by  the  statute,  renounces  the  right 
of  return  secured  to  him  by  the  treaty.75 

§  190.  Power  of  state  to  exclude.— In  the  exercise  of  its 
police  power,  a  state  may  exclude  foreigners  who  are  dangerous, 
such  as  convicts  and  lepers,  but  it  cannot  discriminate  against 
the  citizens  as  a  class  of  a  country  possessing  treaty  rights.76 
The  power  of  exclusion  by  the  state  extends  to  paupers,  vaga- 
bonds, criminals  and  sick,  diseased,  infirm  and  disabled  persons, 
who  will  probably  become  a  public  charge.  The  state  has  power 
to  impose  such  terms  on  their  admission  as  will  prevent  the 
placing  of  the  burden  of  their  support  upon  the  state.  But  where 
persons  are  in  full  possession  of  their  faculties,  sound  in  body, 
and  are  not  paupers,  vagabonds  nor  criminals,  and  in  all  respects 
are  competent  to  earn  a  livelihood,  they  cannot  be  excluded  by 

73  In  re  Tung  Yeong,  19  Fed.  184,  intention  of  returning,  Lau  Ow  Bew 
9    Saw,    620.     A    laborer    who    leaves  v.    United   States,    144   U.   S.   47,    12 
the    United    States    temporarily   may,  Sup.    Ct.    Kep.    517,    36   L.    ed.    340; 
under    the    exclusion    act,    return    on  United   States   v.   Chin   Quong   Look, 
obtaining   a    certificate   of   identifica-  52   Fed.   203;    United   States   v.   Gee 
tion.     Case    of    the    Chinese    Waiter,  Lee,  50  Fed.  271,  1  C.  C.  A.  516,  7  U. 
13  Fed.  286,  7   Saw.  536.  S.  App.  183;  In  re  Ah  Ping,  23  Fed. 

74  In  re  Jack  Sen,  36  Fed.  441,  13  329.    For  other  cases  involving  right 
Saw.  510;   In  re  Tong  Wah  Sick,  36  to  return,  see  In  re  Chae  Chan  Ping, 
Fed.    440,    13    Saw.    497.     See,    also,  36    Fed.    431,    13    Saw.    486;    United 
United  States  v.  Lee  Yung,  63  Fed.  States  v.  Jung  Ah  Lung,  124  U.  S. 
520.  621,  8   Sup.   Ct.  Eep.   663,  31  L.  ed. 

75  In    re    Pong    Ah    Chee,    18    Fed.  591;    Lew   Jim  v.  United   States,   66 
527;    In  re   Tong  Ah  Chee,   23   Fed.  Fed.    953,    14    C.    C.    A.    281,    29    U. 
441.     The     prescribed     certificate     is  S.    App.    513;    Lai    Moy    v.    United 
necessary.     Wan     Shing     v.     United  States,  66  Fed.  955,  14  C.  C.  A.  283, 
States,    140   U.    S.    424,    11   Sup.    Ct.  29  U.  S.  App.  517. 

Rep.    729,    35    L.    ed.    503.     But    see  76  In  re  Ah  Fong,  3  Saw.  144,  Fed. 

as    to    Chinese    merchant   leaving    the       Cas.  No.  102. 
country  for  temporary  purposes  with 


§    191]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         220 

the  state,  even  in  the  absence  of  legislation  of  Congress  on  the 
subject.77 

§  191.  Construction  of  exclusion  laws. — It  is  not  our  purpose 
to  consider  at  any  length  the  force  and  effect  of  the  various  ex- 
clusion acts,  as  our  purpose  is  only  to  show  that  their  validity 
is  not  affected  by  the  fact  that  they  are  in  conflict  with  prior 
treaties,  but  it  may  be  observed  that  the  proceedings  provided 
by  these  laws  are  in  no  sense  a  trial  or  sentence  for  crime,  and, 
hence,  the  constitutional  provisions  requiring  due  process  of  law 
and  trial  by  jury,  and  prohibiting  unreasonable  searches  and 
seizures,  do  not  apply.78  The  provision  that  a  Chinese  person  ad- 
judged to  be  not  lawfully  entitled  to  remain  in  the  United  States 
shall  be  imprisoned  at  hard  labor  is  unconstitutional.79  Placing 
the  burden  of  proof  upon  the  Chinese  person  accused  of  unlaw- 
ful residence  does  not  conflict  with  the  Constitution.80  He 
may  be  removed  by  summary  proceedings  instead  of  indictment.81 
The  prevention  of  the  further  immigration  of  Chinese  laborers, 
and  not  the  expulsion  of  those  in  the  United  States,  was  the 
object  of  the  Chinese  exclusion  act.82  The  term  " laborer"  is 
used  in  its  popular  sense.83  A  certificate  from  the  Chinese  gov- 

"  State    v.    The    Constitution,    42  29  U.  S.  App.   513;    In  re  Ah  Yow, 

Cal.  578,  10  Am.  Eep.  303.  59  Fed.  561;  United  States  v.  Doug- 

78  Fong  Yue  Ting  v.  United  States,  las,    17    Fed.    634;    United   States   v. 
149  U.  S.  698,  13  Sup.  Ct.  Kep.  1016,  Sing   Lee,    71    Fed.    680;    In    re    Ah 
37  L.  ed.  905;  United  States  v.  Wong  Kee,   22   Fed.   519,   22   Blatchf.   520; 
Dep   Ken,   57    Fed.    206.  In    re    Shong    Toon,    21    Fed.    386; 

79  Wong  Wing  v.  United  States,  163  United  States  v.  Ah  Fawn,   57   Fed. 
U.  S.  228,  16   Sup.  Ct.  Eep.  977,  41  591 ;  United  States  v.  Wong  Ah  Hung, 
L.    ed.    40;    United    States    v.    Wong  62  Fed.  1005;  In  re  Moncan,  14  Fed. 
Dep  Ken,  57  Fed.  206.  44,   8   Saw.   350;    In  re  Ah  Lung,   9 

80  United  States  v.  Wong  Dep  Ken,  Saw.    306,    18    Fed.    28.     As   to   mer- 
57    Fed.    206;    In    re    Sing    Lee,    54  chants,  see  Lee  Kan  v.  United  States, 
Fed.    334.  62  Fed.  914,  10  C.  C.  A.  669,  15  U. 

81  United  States  v.  Wong  Sing,  51  S.    App.    516;    United   States   v.   Loo 
Fed.  79.  Way,  68  Fed.  475 ;  Lai  Moy  v.  United 

82  Case  of  the  Chinese  Cabin  Waiter,  States,  66  Fed.  955,  14  C.  C.  A.  283, 
13  Fed.  286,  7  Saw.  536.  29  U.  S.  App.  517 ;  In  re  Tung  Yeong, 

83  In  re  Ho  King,  14  Fed.   724,  8  19  Fed.  184,  9  Saw.  620;  In  re  Quan 
Saw.  438.     For  other  decisions  as  to  Gin,    61    Fed.    395.     See,    also,    Case 
who  are  laborers,  see  In  re  Fook,  65  of   the    Chinese   Wife,    21    Fed.    785  j 
How.    Pr.    404;    Lew   Jim   v.    United  In  re  Lum  Lin  Ying,  59  Fed.  682. 
States,  66  Fed.  953,  14  C.  C.  A.  281, 


221  CONCLUSIVENESS    OF    DECISION    OF    DEPARTMENT.          [§    192 

ernment  is  prima  facie  evidence  of  the  mercantile  character  of 
the  holder.84  The  certificates  of  identity  are  merely  licenses.85 
A  Chinaman  who  has  lost  his  certificate  by  theft  may  prove  his 
identity.86  That  a  merchant  is  such  may  be  established  by  parol 
evidence.87  Any  pertinent  and  convincing  testimony  may  be  re- 
ceived.88 But  the  only  evidence  of  the  right  of  a  Chinese  laborer 
who  departed  from  the  United  States  after  the  act  of  1882  is  the 
certificate.89 

§  192.  Conclusiveness  of  decision  of  Department. — Many  of 
the  questions  that  arose  and  would  arise  under  the  exclusion  acts 
will  not,  in  the  future,  come  before  the  courts,  for  the  reason  that 
the  supreme  court  of  the  United  States  has  determined  that  the 
decision  of  the  Secretary  of  Commerce  and  Labor,  affirming  the 
denial  of  the  immigration  officers,  after  examination  of  the  right 
of  a  person  of  Chinese  descent  to  enter  the  United  States,  is 
conclusive  on  the  courts.  In  habeas  corpus  proceedings,  the  de- 
cision of  the  secretary  is  just  .as  conclusive  when  the  ground  on 
which  the  right  of  entry  is  claimed  is  citizenship  as  when  the 
ground  is  any  one  of  those  excepted  from  the  exclusion  acts.  The 
provision  of  the  statute  declaring  that  the  decision  of  the  appro- 
priate department  on  the  right  of  a  person  of  Chinese  descent 

84  In  re  Tung  Yeong,  19  Fed.  184,  victed  of  felony  is  not  entitled  to  reg- 
9   Saw.   620.  ister.     United  States  v.  Chew  Cheong, 

85  Chae  Chan  Ping  v.  United  States,  61  Fed.  200.     A  Chinaman  who  came 
130  U.  S.  581,  9  Sup.  Ct.  Eep.  623,  from  Canada  may  be  returned  to  that 
32  L.  ed.   1068.  country.     In   re   Mah   Wong  Gee,   47 

86  United  States  v.  Jung  Ah  Lung,  Fed.  433;  United  States  v.  Chong  Sam, 
124  U.  S.  621,  8  Sup.  Ct.  Eep.  663,  47  Fed.  478;  United  States  v.  Don  On, 
31   L.   ed.   591.  49   Fed.   569.     For   various   cases   re- 

81  Case    of    the    Chinese    Merchant,  lating   to   Chinese  exclusion  acts,  see 

13  Fed.  605.  United   States   v.   Trumbull,   46   Fed. 

88  In  re  Ho  King,   14  Fed.   724,  8  755;   In  re  Mah  Wong  Gee,  47  Fed. 
Saw.    438;    In   re   Leong   Yick   Dew,  433;  United  States  v.  The  Geo.  E.  Wil- 
19  Fed.  490;  In  re  Ah  Quan,  21  Fed.  ton,  43  Fed.  606;  In  re  Leo  Hew  Bow, 
182.  47  Fed.  302;  United  States  v.  Chung 

89  Case    of    the    Limited    Tag,    21  Fung  Sun,  63  Fed.  261 ;  United  States 
Fed.  789.     See,  also,  In  re  Tom  Mun,  v.  Lee  Hoy,  48  Fed.  825;  In  re  Chow 
47  Fed.   722;    In  re  Wo   Tai  Li,  48  Goo  Pooi,  25  Fed.  77;  In  re  Ah  Yuk, 
Fed.  668.     But  see  as  to  a  merchant,  53  Fed.  781;  United  States  v.  Hing 
Lau   Ow   Bew  v.   United   States,   144  Quong    Chow,    53    Fed.    233 ;    United 
U.   S.   47,   12   Sup.   Ct.   Kep.   517,   36  States  v.  Chong  Sam,  47  Fed.  878. 

L.   ed.   340.     A   Chinese   laborer   con- 


§    193]       CONFLICT  BETWEEN  TREATIES  AND  ACTS  OF  CONGRESS.         222 

who  seeks  entry  into  the  United  States  shall  be  conclusive  on  the 
courts  in  habeas  corpus  proceedings  does  not  infringe  the  con- 
stitutional guaranty  of  due  process  of  law,  where  there  is  no 
abuse  of  authority,  notwithstanding  that  the  ground  on  which 
the  right  of  entry  is  based  is  citizenship  of  the  United  States.90 

§  193.  Hearing  arbitrarily  denied. — Recently  the  supreme 
court  of  the  United  States  declared  that  the  decision  of  the 
Department  of  Commerce  and  Labor,  in  refusing  to  allow  a 
Chinaman  to  enter,  was  final  and  conclusive,  but  that  this  prin- 
ciple was  based  on  the  supposition  that  the  decision  was  reached 
after  a  hearing  had  in  good  faith,  although  it  might  be  summary 
in  character.  In  the  petition  for  a  writ  of  habeas  corpus,  it  was 
alleged  that  the  petitioner  was  born  in  the  United  States  of 
parents  domiciled  there;  that  he  was  denied  the  right  to  land; 
that  he  was  prevented  by  the  officials  from  obtaining  testimony, 
including  that  of  witnesses  named  by  him,  and  that  if  he  had 
been  given  a  proper  opportunity,  he  could  have  produced  over- 
whelming evidence  that  he  was  born  in  the  United  States.  The 
allegations  substantially  were  to  the  effect  that  he  was  arbi- 
trarily denied  such  a  hearing  and  such  an  opportunity  to  prove 
his  right  of  entrance  as  it  was  intended  by  the  statute  that  he 
should  have.  The  court  said  that  the  case  could  proceed  no 
further,  if  the  petitioner  was  not  denied  a  fair  opportunity  to  pro- 
duce the  evidence  in  his  behalf  that  he  desired,  or  if  he  had  a  fair 
though  summary  hearing.  The  court  held  that  these  facts  are 
the  foundation  for  the  jurisdiction  of  the  court,  but  that  such 
jurisdiction  would  not  be  established  simply  by  proving  that 
the  officials  did  not  accept  the  truth  of  sworn  statements,  even 
if  no  contradicting  or  impeaching  testimony  was  produced. 
"The  statutes,"  said  Mr.  Justice  Holmes,  delivering  the  opinion 
of  the  court,  "purport  to  exclude  aliens  only.  They  create  or 
recognize,  for  present  purposes,  it  does  not  matter  which,  the 
right  of  citizens  outside  the  jurisdiction  to  return  to  the  United 
States.  If  one  alleging  himself  to  be  a  citizen  is  not  allowed  a 
chance  to  establish  his  right  in  the  mode  provided  by  those 
statutes,  although  that  mode  is  intended  to  be  exclusive,  the  stat- 

90  United  States  v.  Ju  Toy,  198  U.  Brewer  filed  a  dissenting  opinion,  in 
S.  253,  25  Sup.  Ct.  Rep.  644,  49  L.  which  Mr.  Justice  Peckham  concurred, 
ed.  1040.  In  this  case  Mr.  Justice  Mr.  Justice  Day  also  dissented. 


223  HEARING  ARBITRARILY   DENIED.  [§    193 

utes  cannot  be  taken  to  require  him  to  be  turned  back  without 
more.  The  decision  of  the  Department  is  final,  but  that  is  on  the 
presupposition  that  the  decision  was  after  a  hearing  in  good  faith, 
however  summary  in  form.  As  between  the  substantive  right  of 
citizens  to  enter,  and  of  persons  alleging  themselves  to  be  citi- 
zens to  have  a  chance  to  prove  their  allegation  on  the  one  side 
and  the  conclusiveness  of  the  commissioner's  fiat  on  the  other, 
when  one  or  the  other  must  give  way,  the  latter  must  yield.  In 
such  a  case  something  must  be  done,  and  it  naturally  falls  to 
the  courts."  He  closed  by  saying:  "But  unless  and  until  it  is 
proved  to  the  satisfaction  of  the  judge  that  a  hearing  properly 
so-called  was  denied,  the  merits  of  the  case  are  not  open,  and  we 
may  add,  the  denial  of  a  hearing  cannot  be  established  that  the 
hearing  was  wrong." 91  It  is  to  be  observed  that  in  the  case  just 
cited  the  decision  was  based  upon  the  allegations  contained  in  the 
petition,  which,  if  true,  showed  that  a  hearing  was  arbitrarily 
denied,  but  the  decision  in  no  manner  alters  the  rule  that  the  de- 
cision is  conclusive  when  a  hearing  of  some  kind  in  good  faith  in 
reality  has  taken  place. 

81  Chin  Yow  v.  United  States   (decided  January  6,  1908),  28  Sup.  Ct.  Eep. 
201. 


TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.        224 


CHAPTER  IX. 

STATE     CONSTITUTIONS     AND     STATUTES     IN     CONFLICT     WITH 

TEEATIES. 

§  194.  Comments. 

§  195.  Fourteenth  amendment  applies  to  aliens. 

§  196.  Procedure  in  criminal  cases. 

§  197.  Judicial  trial  necessary. 

§  198.  Employment  of  Chinese  by  corporation. 

§  199.  Cpmments. 

§  200.  Property  includes  right  to  labor. 

§  201.  Employment  of  aliens  on  public  works. 

§  202.  Eight  to  administration. 

§  203.  Power  of  court  to  appoint  attorney  for  absent  heirs  displaced  by  treaty. 

§  204.  State  pilotage  laws. 

§  205.  Trademarks  protected  by  treaty. 

§  206.  Persons  adding  to  the  prevalence  of  disease. 

§  207.  Views  of  majority  of  court. 

§  208.  Dissenting  views. 

§  209.  South  Carolina  dispensary  act. 

§  210.  Treaty  devesting  state  of  right  to  tax. 

§  211.  Criminal  procedure. 

§  212.  Consuls  acting  as  judges. 

§  213.  Municipal    ordinances. 

§  214.  Special  rights  to  American  citizens. 

§  215.  Eight  of  nonresident  aliens  to   damages  for  death  of  relative. 

§  216.  Prevention  of  intrusion  on  Indian  lands  a  police  regulation. 

§  217.  Covenant  not  to  rent  property  to  a  Chinaman. 

§  218.  Aliens  suing  in  courts. 

§  219.  Transitory  actions. 

§  220.  Eights  of  aliens  to  inherit  affected  by  treaty — Comments. 

§  221.  Disability  of  aliens. 

§  222.  Title  in  aliens  when  treaty  made. 

§  223.  Taking  by  devise. 

§  224.  Foreign  corporation  purchasing  stock  of  local  corporation. 

§  225.  Constitutional  legislation. 

§  226.  Alien  acquiring  title  by  descent. 

§  227.  Taking  by  dower  or  curtesy. 

§  228.  Alien  has  no  inheritable  blood. 

§  229.  Eight  of  alien  to  take  personal  property. 

§  230.  Treaties   removing   disability   of   aliens   to   inherit. 

§  231.  Treaty  admitting  of  two  constructions. 

§  232.  Contention  of  state. 

§  233.  Euling  of  court. 

§  234.  Other  decisions  of  supreme  court  of  United  States. 


225  COMMENTS.  [§    194 

§  235.  Same  subject. 

§  236.  Same  subject — Treaties   of   1783   and   1794. 

§  237.  Expression  of  executive  department  of  government. 

§  238.  Dissent  from  these  views. 

§  239.  In  California. 

§  240.  Constitutionality  of  statutes. 

§  241.  Eule  recognized  that  treaty  may  regulate  rights, 

§  242.  In  Delaware. 

§  243.  In  Illinois. 

§  244.  Existence  of  treaty. 

§  245.  Statute  not  unconstitutional  as  special  law. 

§  246.  Construction  of  words. 

§  247.  Allowance  of  time  to  sell. 

§  248.  In  Iowa. 

§  249.  Goods  not  including  lands. 

§  250.  Treaty  contemplating  one  step  of  transmission. 

§  251.  In  Kentucky. 

§  252.  Lapse  of  time  precluding  claim. 

§  253.  In  Maryland. 

§  254.  In  Massachusetts. 

§  255.  In  Michigan. 

§  256.  In  New  York. 

§  257.  Limitation  on  time  to  sell. 

§  258.  Existence  of  title  at  time  of  treaty. 

§  259.  Same  rights  as  resident  heir. 

§  260.  In  North  Carolina. 

§  261.  Confiscation  acts  annulled. 

§  262.  In  Pennsylvania. 

§  263.  In  South  Carolina. 

§  264.  In  Tennessee. 

§  265.  In  Texas. 

§  266.  In  Virginia. 

§  194.  Comments. — The  Constitution  places  treaties  and  acts 
of  Congress  on  the  same  plane.  Both  are  the  supreme  law  of  the 
land,  and  one  may  abrogate  or  modify  the  other.  The  most 
solemn  treaty  may  be  violated  by  an  act  of  Congress,  and  al- 
though it  may  be  freely  conceded  that  the  national  faith  has  been 
broken,  this  question  is  one  that  concerns  the  political  depart- 
ment of  the  government,  and  not  the  judicial.  It  is  the  duty  of 
the  courts  to  declare  and  enforce  the  law,  and  they  must  enforce 
acts  of  Congress  even  if  they  conflict  with  treaties.  But  in  the 
case  of  constitutions  and  statutes  of  states,  no  such  questions 
arise.  The  treaty,  whenever  it  conflicts  with  a  provision  of  the 
Constitution  or  statute  of  a  state  or  of  its  common  law,  will 

Treaties — 15 


§    195]          TREATIES,   STATE   CONSTITUTIONS   AND   STATUTES.  226 

supersede  it.  Both  cannot  stand  when  in  conflict,  and  the  treaty 
must  be  held  to  be  the  supreme  law.  We  shall  now  consider 
some  of  the  cases  in  which  this  conflict  has  arisen. 

§  195.  Fourteenth  amendment  applies  to  aliens. — The  four- 
teenth amendment  to  the  Constitution  of  the  United  States  is  not 
confined  to  the  protection  of  citizens.  The  language  used  in  the 
amendment  is  comprehensive  and  universal  in  its  application  to 
all  persons  within  the  territorial  jurisdiction  of  the  United  States, 
irrespective  of  any  differences  that  may  exist  with  respect  to 
race,  color,  or  nationality.1  By  the  third  article  of  the  treaty 
between  the  United  States  and  China,  it  was  provided  that  "if 
Chinese  laborers  or  Chinese  of  any  other  class,  now  either  per- 
manently or  temporarily  residing  in  the  territory  of  the  United 
States,  meet  with  ill-treatment  at  the  hands  of  any  other  persons, 
the  government  of  the  United  States  will  exert  all  its  powers 
to  devise  measures  for  their  protection,  and  to  secure  to  them  the 
same  rights,  privileges,  immunities  and  exemptions  as  may  be 
enjoyed  by  the  citizens  or  subjects  of  the  most  favored  nation, 
and  to  which  they  are  entitled  by  treaty. ' ' 2 

Referring  to  this  provision,  and  speaking  of  an  ordinance  mak- 
ing arbitrary  and  unjust  discriminations  founded  on  race  between 
persons  otherwise  in  similar  circumstances,  Mr.  Justice  Matthews, 
in  delivering  the  opinion  of  the  court,  said:  "When  we  consider 
the  nature  and  the  theory  of  our  institutions  of  government,  the 
principles  upon  which  they  are  supposed  to  rest,  and  review  the 
history  of  their  development,  we  are  constrained  to  conclude  that 
they  do  not  mean  to  leave  room  for  the  play  and  action  of  purely 
personal  and  arbitrary  power.  Sovereignty  itself  is,  of  course, 
not  subject  to  law,  for  it  is  the  author  and  source  of  law;  but  in 
our  system,  while  sovereign  powers  are  delegated  to  the  agencies 
of  government,  sovereignty  itself  remains  with  the  people,  by 
whom  and  for  whom  all  government  exists  and  acts.  And  the 
law  is  the  definition  and  limitation  of  power.  It  is,  indeed,  quite 
true  that  there  must  always  be  lodged  somewhere,  and  in  some 
person  or  body,  the  authority  of  final  decision;  and  in  many 
cases  of  mere  administration  the  responsibility  is  purely  political, 

1  Yick  Wo   v.  Hopkins,   118  U.    S.  2  22    Stats,   at   Large,   827. 

.ft56,  6  Sup.  Ct.  Eep.  1064,  30  L.  ed. 


227  PROCEDURE  IN  CRIMINAL  CASES.  [§  196 

no  appeal  lying  except  to  the  ultimate  tribunal  of  the  public 
judgment,  exercised  either  in  the  pressure  of  opinion  or  by  means 
of  the  suffrage.  But  the  fundamental  rights  to  life,  liberty,  and 
the  pursuit  of  happiness,  considered  as  individual  possessions, 
are  secured  by  those  maxims  of  constitutional  law  which  are 
the  monuments  showing  the  victorious  progress  of  the  race  in 
securing  to  men  the  blessings  of  civilization  under  the  reign  of 
just  and  equal  laws,  so  that,  in  the  famous  language  of  the 
Massachusetts  Bill  of  Rights,  the  government  of  the  common- 
wealth 'may  be  a  government  of  laws  and  not  of  men.'  For 
the  very  idea  that  one  man  may  be  compelled  to  hold  his  life,  or 
the  means  of  living,  or  any  material  right  essential  to  the  enjoy- 
ment of  life,  at  the  mere  will  of  another,  seems  to  be  intolerable 
in  any  country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself. ' '  3 

§  196.  Procedure  in  criminal  cases. — Aliens  who  are  within 
the  territory  of  the  United  States  are  entitled  to  the  full  protec- 
tion guaranteed  by  the  fifth  and  sixth  amendments  relative  to 
procedure  in  criminal  cases.  This  proposition  was  very  fully 
discussed  in  the  cases  in  which  the  laws  providing  for  the  ex- 
clusion of  Chinese  came  before  the  courts.  The  acts  of  Con- 
gress providing  for  the  exclusion  of  Chinese  laborers  from  the 
United  States  were  held  to  be  a  constitutional  exercise  of  legis- 
lative power,  and  that  so  far  as  they  were  in  conflict  with  treaties 
with  China,  they  operated  to  that  extent  as  an  abrogation  of  the 
municipal  law  of  the  United  States.4  So  it  was  held  that  the 

3  Yick  Wo  v.   Hopkins,   118  U.   S.  to  hinder  the  employment  of  foreign- 

356,  6  Sup.  Ct.  Eep.  1064,  30  L.  ed.  born  unnaturalized  male  persons  over 

220.     A  statute  was  passed  in  Penn-  21  years  of  age.     The  act  is  hostile  to 

sylvania  which  imposed  a  tax  on  em-  and    discriminates    against    such    per- 

ployers  of  foreign-born  unnaturalized  sons.     It  interposes  to  the  pursuit  by 

male  persons  of  a  tax  of  three  cents  them   of   their  lawful  avocations   ob- 

a  day  for  each  day  that  such  persons  stacles    to    which    others,    under    like 

might  be  employed,  and  authorized  the  circumstances,     are    not     subjected." 

deduction  of  that  sum  from  the  wages  An    unequal    tax   upon    laundries   not 

of    such    persons.     This    statute    was  run  by  steam  cannot  be  upheld.     In 

held  to   be  in  violation   of  the   four-  re  Yot  Sang,   75  Fed.  984. 
teenth  amendment,  in  that  it  deprived  *  Chae  Chan  Ping  v.  United  States 

such  employees  of  the  equal  protection  (Chinese  Exclusion  Case),  130  U.  S. 

of  the  laws.     Fraser  v.  McConway  &  581,  9   Sup.   Ct.  Eep.   623,  32  L.  ed. 

Forley    Co.,    82    Fed.    257.     Said    the  1069. 
court:  "Evidently  the  act  is  intended 


§    196]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  228 

right  to  exclude  aliens,  either  absolutely  or  upon  conditions,  in 
war  or  in  peace,  was  an  inherent  right  of  every  sovereign  nation.5 
Admitting  that  it  was  competent  for  Congress  to  prevent  aliens 
from  coming  to  the  United  States  and  to  provide  for  the  deporta- 
tion of  those  who  were  unlawfully  within  its  territory,  and  to 
submit  the  enforcement  of  the  laws  enacted  for  that  purpose  to 
executive  officers,  a  question  arose  as  to  the  constitutionality  of 
a  section  of  a  subsequent  act  declaring  that  "any  such  Chinese 
person  or  person  of  Chinese  descent  convicted  and  adjudged  to 
be  not  lawfully  entitled  to  be  or  remain  in  the  United  States 
shall  be  imprisoned  at  hard  labor  for  a  period  not  exceeding  one 
year,  and  thereafter  removed  from  the  United  States. ' '  The  con- 
tention was  made  that  this  section  authorized  the  infliction  of  an 
infamous  punishment,  and,  therefore,  was  in  conflict  with  the 
fifth  and  sixth  amendments  to  the  Constitution  declaring  that  no 
person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
and  that  in  all  criminal  prosecutions  the  accused  shall  have  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
state  and  district  in  which  the  crime  shall  have  been  committed. 
The  court  said  that  it  thought  it  clear  "that  detention  or  tem- 
porary confinement  as  part  of  the  means  necessary  to  give  effect 
to  the  provisions  for  the  exclusion  or  expulsion  of  aliens  would 
be  valid.  Proceedings  to  exclude  or  expel  would  be  vain  if 
those  accused  could  not  be  held  in  custody  pending  the  inquiry 
into  their  true  character  and  while  arrangements  were  being 
made  for  their  deportation.  Detention  is  a  usual  feature 
of  every  case  of  arrest  in  a  criminal  charge,  even  when  an  in- 
nocent person  is  wrongfully  accused;  but  it  is  not  imprisonment 
in  a  legal  sense.  So,  too,  we  think  it  would  be  plainly  compe- 
tent for  Congress  to  declare  the  act  of  an  alien  in  remaining  un- 
lawfully within  the  United  States  to  be  an  offense  punishable  by 
fine  or  imprisonment,  if  such  offense  were  to  be  established  by  a 
judicial  trial."  The  court  said,  however,  that  the  evident  inten- 
tion of  the  section  was  that  the  detention  provided  for  was  im- 
prisonment at  hard  labor  to  be  suffered  before  the  sentence  of 
deportation  should  be  effectuated,  and  that  such  imprisonment 
was  to  be  adjudged  upon  a  summary  hearing.6 


5  Fong  Yue  Ting  v.  United  States,  6  Wong  Wing  v.  United  States,  163 

149  U.  S.  698,  13  Sup.  Ct.  Kep.  1016,       U.  S.  228,  16  Sup.  Ct.  Rep.  977,  41 
37  L.  ed.  905.  L.  ed.  140. 


229  JUDICIAL  TRIAL  NECESSARY.  [§§    197,    198 

§  197.  Judicial  trial  necessary. — The  court  adverted  to  its 
previous  decisions  to  the  effect  that  the  United  States,  as  a  mat- 
ter of  public  policy,  might  forbid  the  coming  of  aliens  or  expel 
those  within  its  territory,  and  might  devolve  the  power  and  duty 
of  identifying  and  arresting  such  persons  and  procuring  their 
deportation  upon  subordinate  officials.  "But,"  said  Mr.  Justice 
Shiras,  delivering  the  opinion  of  the  court,  "when  Congress 
sees  fit  to  further  promote  such  a  policy  by  subjecting  the  per- 
sons of  such  aliens  to  infamous  punishment  at  hard  labor,  or  by 
confiscating  their  property,  we  think  such  legislation,  to  be  valid, 
must  provide  for  a  judicial  trial  to  establish  the  guilt  of  the  ac- 
cused. No  limits  can  be  put  by  the  courts  upon  the  power  of 
Congress  to  protect,  by  summary  methods,  the  country  from  the 
advent  of  aliens  whose  race  or  habits  render  them  undesirable 
as  citizens,  or  to  expel  such  if  they  have  already  found  their  way 
into  our  land  and  unlawfully  remain  therein.  But  to  declare  un- 
lawful residence  within  the  country  to  be  an  infamous  crime, 
punishable  by  deprivation  of  liberty  and  property,  would  be  to 
pass  out  of  the  sphere  of  constitutional  legislation,  unless  provi- 
sion were  made  that  the  fact  of  guilt  should  first  be  established 
by  a  judicial  trial.  It  is  not  consistent  with  the  theory  of  our 
government  that  the  legislature  should,  after  having  defined  an 
offense  as  an  infamous  crime,  find  the  fact  of  guilt  and  adjudge 
the  punishment  by  one  of  its  own  agents. ' ' 7 

§  198.  Employment  of  Chinese  by  corporation. — The  Con- 
stitution of  California  adopted  in  1879  contains  the  following 
clause:  "No  corporation  now  existing,  or  hereafter  formed  un- 
der the  laws  of  this  State,  shall,  after  the  adoption  of  this  Con- 
stitution, employ,  directly  or  indirectly,  in  any  capacity,  any 
Chinese  or  Mongolian.  The  legislature  shall  pass  such  laws  as 
may  be  necessary  to  enforce  this  provision."8  In  pursuance  of 
this  constitutional  provision  an  act  was  passed  by  the  legislature 
of  California  declaring  that  any  officer  of  a  corporation  who 
should  employ  "in  any  manner,  or  capacity,  upon  any  work  or 
business  of  such  corporation,  any  Chinese  or  Mongolian  is  guilty 

7  Wong  Wo   v.   United   States,   163  trial,  see  In  re  Tsu  Tse  Mee,  81  Fed. 

U.  S.   228,  16  Sup.   Ct.  Rep.   977,  41  565. 

L.  ed.  140.     That  an  order  of  deporta-  8  Cal.  Const.  1879,  art.  XIX,  sec.  2. 
tion    may    be    made    without    a    jury 


§    198]          TREATIES,   STATE   CONSTITUTIONS   AND   STATUTES.  230 

of  a  misdemeanor,"  punishable  by  fine  or  imprisonment,  or 
both.9  An  officer  of  a  corporation  convicted  and  imprisoned  for 
a  violation  of  this  act  obtained  a  writ  of  habeas  corpus  from  the 
United  States  circuit  court,  alleging  that  this  provision  of  the 
Constitution  and  law  passed  in  pursuance  of  it  were  void,  because 
they  were  in  violation  of  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States,  and  the  civil  rights  law,  and 
also  of  the  treaty  between  the  United  States  and  China.  Upon 
the  latter  point  the  court  held  that  the  treaty-making  power  had 
been  surrendered  by  the  states  to  the  national  government,  and 
that  the  provisions  of  the  treaty  made  with  China  in  1868,  recog- 
nizing the  right  of  the  citizens  of  China  to  emigrate  to  the  United 
States  for  purposes  of  curiosity,  trade  and  permanent  residence, 
and  providing  that  Chinese  subjects  residing  in  the  United  States 
shall  enjoy  the  same  privileges,  immunities  and  exemptions  in 
respect  to  residence  and  travel  as  may  be  enjoyed  by  the  citi- 
zens or  subjects  of  the  most  favored  nations,  were  within  the 
treaty-making  power.  It  was  contended  that  even  if  the  treaty 
in  terms  should  apply,  the  provision  was  not  within  the  treaty- 
making  power,  but  Judge  Sawyer  said  that  he  had  no  doubt 
that  the  provision  was  within  this  power,  and  continued :  "As  to 
the  point  whether  the  provision  in  question  is  within  the  treaty- 
making  powers,  I  have  as  little  doubt  as  upon  the  point  already 
discussed.10  Among  all  civilized  nations,  in  modern  times  at 
least,  the  treaty-making  power  has  been  accustomed  to  determine 
the  terms  and  conditions  upon  which  the  subjects  of  the  parties  to 
the  treaty  shall  reside  in  the  respective  countries,  and  the  treaty- 
making  power  is  conferred  by  the  Constitution  in  unlimited 

9  Cal.  Pen.  Code,  sees.  178,  179.  which   is   open,   without   limit,   let   or 

10  In   re    Tiburcio   Parrott,    6   Saw.  hindrance,  to  all  citizens,  and  all  other 
349,    1    Fed.    481.     Speaking    of    the  foreigners,  without  regard  to  nation, 
right  of  the  Chinese  to  the  equal  pro-  race    or    color.     Yet    in    the    face    of 
tection    of    the    laws,    Judge    Sawyer  these  plain  provisions  of  the  national 
said :    "It  would  seem  that  no  argu-  constitution    and    statutes,    we    find, 
ment  should  be  required  to  show  that  both  in  the  constitution  and  laws  of 
the   Chinese   do   not   enjoy  the   equal  a    great    state    and    member    of    this 
benefit  of  the  laws  with  citizens,   or  Union,    just    such    prohibitory    provi- 
'the    equal    protection    of    the    laws,'  sions    and   enactments    discriminating 
where  the  law  forbids  their  laboring,  against   the   Chinese.     Argument   and 
or  making  and  enforcing  contracts  to  authority,  therefore,  seem  still  to  be 
labor,  in  a  very  large  field  of  labor  necessary,    and    fortunately    we    are 


231 


EMPLOYMENT    OF    CHINESE    BY    CORPORATION.  [§    198 


terms.  Besides,  the  authorities  cited  on  the  first  point  fully  cover 
and  determine  this  question.  If  the  treaty-making  power  is  au- 
thorized to  determine  what  foreigners  shall  be  permitted  to  come 
into  and  reside  within  the  country,  and  who  shall  be  excluded,  it 
must  have  the  power  generally  to  determine  and  prescribe  upon 
what  terms  and  conditions  such  as  are  admitted  shall  be  per- 
mitted to  remain.  If  it  has  authority  to  stipulate  that  aliens  re- 
siding in  a  state  may  acquire  and  hold  property,  and  on  their 
death  transmit  it  to  alien  heirs  who  do  not  reside  in  the  state, 
against  the  provisions  of  the  laws  of  the  state,  otherwise  valid — 
and  so  the  authorities  already  cited  hold — then  it  certainly  must 
be  competent  for  the  treaty-making  power  to  stipulate  that  aliens 
residing  in  a  state  in  pursuance  of  the  treaty  may  labor  in  or- 
der that  they  may  live  and  acquire  property  that  may  be  so  held, 
enjoyed,  and  thus  transmitted  to  alien  heirs.  The  former  must 
include  the  latter — the  principal,  the  incidental  power." 

It  was  accordingly  held  that  these  provisions  of  the  Constitu- 
tion of  California  and  the  statute  providing  a  penalty  for  their 
violation  were  void,  because  they  were  in  conflict  with  the  treaty.11 


not  without  either.  From  the  cita- 
tions already  made,  and  from  many 
more  that  might  be  made  from  Jus- 
tices Field,  Bradley,  Swayne  and 
other  judges,  it  appears  that  to  de- 
prive a  man  of  the  right  to  select 
and  follow  any  lawful  occupation — 
that  is,  to  labor  or  contract  to  labor, 
if  he  so  desires  and  can  find  employ- 
ment— is  to  deprive  him  of  both  lib- 
erty and  property,  within  the  mean- 
ing of  the  fourteenth  amendment  and 
the  act  of  Congress."  In  re  Tibur- 
cio  Parrott,  1  Fed.  481,  6  Saw.  349. 

11  In  re  Tiburcio  Parrott,  6  Saw. 
349,  1  Fed.  48.  In  that  case  Judge 
Hoffman,  United  States  District 
Judge,  said:  "The  end  proposed  to 
be  attained  by  this  extraordinary 
article  is  clearly  and  even  ostenta- 
tiously avowed.  Its  title  proclaims 
that  it  is  directed  against  the  Chinese. 
It  forbids  their  employment  by  any 
but  private  individuals,  and  when 


through  the  operation  of  the  laws 
they  shall  have  become,  or  be  liable 
to  become,  vagrants,  paupers,  mendi- 
cants, or  criminals,  the  legislature  is 
directed  to  provide  for  their  removal 
from  the  state  if  they  fail  to  com- 
ply with  such  conditions  as  it  may 
prescribe  for  their  continued  resi- 
dence. 

' '  The  f ramers  of  the  article  do  not 
seem  to  have  relied  upon  the  effi- 
cacy of  the  provisions  imposing  such 
extensive  restrictions  upon  the  rights 
of  the  prescribed  race  to  labor  for 
their  living,  to  reduce  them  to  the 
condition  of  vagrants,  paupers,  men- 
dicants, or  criminals,  or  persons  who 
'may  become'  such.  The  legislature 
is  directed  to  impose  conditions  of 
residence,  and  provide  for  the  re- 
moval of  'aliens  otherwise  dangerous 
or  detrimental  to  the  well-being  or 
peace  of  the  State,'  and  lest  any 
doubt  or  hesitation  should  be  felt  as 


§  199]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES. 


232 


§  199.  Comments. — While,  confessedly,  the  police  power  of 
a  state  is  very  broad,  and  it  is  impossible  to  define  it,  so  as  to 
describe  and  fix  its  exact  limits,  yet  it  is  beyond  all  doubt  that 
an  unconstitutional  object  cannot  be  accomplished  because  it  is 
pretended  that  the  statute,  seeking  to  secure  this  end,  was  passed 
in  the  legitimate  exercise  of  the  police  power.  It  is  always  corn- 


to  the  propriety  of  including  wealthy 
and  respectable  Chinese  in  this  class, 
the  fourth  section  declares  'the  pres- 
ence of  foreigners  ineligible  to  be- 
come citizens  of  the  United  States' 
(i.  e.,  the  Chinese)  to  be  'dangerous 
to  the  well-being  of  the  state.'  And 
the  legislature  is  directed  to  'dis- 
courage their  immigration  by  all  the 
means  within  its  power.' 

"Would  it  be  believed  possible,  if 
the  fact  did  not  sternly  confront  us, 
that  such  legislation  as  this  could  be 
directed  against  a  race  whose  right 
freely  to  emigrate  to  this  country, 
and  reside  here  with  all  'the  privi- 
leges, immunities,  and  exemptions  of 
the  most  favored  nation,'  has  been 
recognized  and  guaranteed  by  a 
solemn  treaty  of  the  United  States, 
which  not  only  engages  the  honor  of 
the  national  government,  but  is  by 
the  very  terms  of  the  constitution 
the  supreme  law  of  the  land? 

"Ther  legislature  has  not  yet  at- 
tempted to  carry  into  effect  the  man- 
date of  the  first  section  by  imposing 
conditions  upon  which  aliens  who  are 
or  may  become  vagrants,  paupers, 
mendicants,  or  criminals,  may  reside 
in  the  state,  or  by  providing  for 
their  removal.  Its  action  thus  far 
had  been  limited  to  forbidding  the 
employment  of  Chinese,  directly  or 
indirectly,  by  any  corporation  formed 
under  the  laws  of  this  state.  The 
validity  of  this  law  is  the  only  ques- 
tion presented  for  determination  in 
the  present  case.  In  considering  this 
question  we  are  at  liberty  to  look 


not  merely  to  the  language  of  the  law, 
but  to  its  effect  and  purpose. 

"  '  In  whatever  language  a  statute 
may  be  framed,  its  purpose  may  be 
determined  by  its  natural  and  rea- 
sonable effect;  and  if  it  is  apparent 
that  the  object  of  this  statute,  as 
judged  by  that  criterion,  is  to  com- 
pel the  owners  of  vessels  to  pay  a 
sum  of  money  for  every  passenger 
brought  by  them  from  a  foreign  shore 
and  landed  at  the  port  of  New  York, 
it  is  as  much  a  tax  on  passengers  if 
collected  from  them,  or  a  tax  on  the 
vessel  or  owners  for  the  exercise  of 
the  right  of  landing  their  passen- 
gers in  that  city,  as  was  the  stat- 
ute held  void  in  the  passenger  cases. ' 
Henderson  v.  Mayor  etc.,  92  U.  S. 
268,  23  L.  ed.  543. 

"  'If,  as  we  have  endeavored  to 
show,  in  the  opinion  in  the  preced- 
ing cases,  we  are  at  liberty  to  look 
to  the  effect  of  a  statute  for  the 
test  of  its  constitutionality,  the  ar- 
gument need  go  no  further. '  Chy 
Lung  v.  Freeman,  92  U.  S.  279,  23 
L.  ed.  550. 

"If  the  effect  and  purpose  of  the 
law  be  to  accomplish  an  unconstitu- 
tional object,  the  fact  that  it  is 
passed  in  the  pretended  exercise  of 
the  police  power,  or  a  power  to  regu- 
late  corporations,  will  not  save  it. 
If  a  law  of  the  state  forbidding  the 
Chinese  to  labor  for  a  living,  or  re- 
quiring them  to  obtain  a  license  for 
doing  so,  would  have  been  plainly 
in  violation  of  the  constitution  and 
treaty,  the  state  cannot  attain  the 


233 


COMMENTS. 


§  199 


petent  for  the  courts  to  decide  what  its  purpose  is,  by  consider- 
ing its  natural  and  reasonable  effect,  no  matter  in  what  language 
the  statute  may  be  phrased.  It  is  not  possible,  by  any  form  in 
which  it  may  be  attempted,  to  nullify  those  provisions  of  the 
federal  Constitution,  the  object  of  which  is  to  secure  and  pre- 
serve the  liberty  of  the  citizen.  If  it  would  be  a  violation  of 


same  end  by  addressing  its  prohibi- 
tion to  corporations. 

"In  Cummings  v.  State  of  Mis- 
souri, Mr.  Justice  Field,  speaking 
for  the  court,  observes:  'Now,  as  the 
state,  had  she  attempted  the  course 
supposed,  would  have  failed,  it  must 
follow  that  any  other  mode  of  procur- 
ing the  same  result  must  equally  fail. 
The  provisions  of  the  federal  consti- 
tution intended  to  secure  the  liberty 
of  the  citizen  cannot  be  evaded  by 
the  form  in  which  the  power  of  the 
state  is  exerted.  If  this  were  not  so, 
if  that  which  cannot  be  accomplished 
by  means  looking  directly  to  the  end 
can  be  accomplished  by  indirect 
means — the  inhibition  may  be  evaded 
at  pleasure.  No  kind  of  oppression 
can  be  named,  against  which  the 
framers  of  the  constitution  intended 
to  guard,  which  may  not  be  effected.' 
4  Wall.  320,  18  L.  ed.  356. 

' '  The  application  of  these  preg- 
nant words  to  the  case  at  bar  is  ob- 
vious. Few  will  have  the  hardihood 
to  deny  the  purpose  and  effect  of  the 
article  of  the  constitution  which  has 
been  cited.  It  is  in  open  and  seem- 
ingly contemptuous  violation  of  the 
provisions  of  the  treaty  which  give 
to  the  Chinese  the  right  to  reside  here 
with  all  the  privileges,  immunities 
and  exemptions  of  the  most  favored 
nation.  It  is  in  fact  but  one,  and 
the  latest,  of  a  series  of  enactments 
designed  to  accomplish  the  same  end. 
The  attempt  to  impose  a  special  li- 
cense tax  upon  Chinese  for  the  privi- 
lege of  mining,  the  attempt  to  sub- 


ject them  to  peculiar  and  exceptional 
punishments  commonly  known  as  the 
Queue  Ordinance,  have  been  frus- 
trated by  the  judgments  of  this  court. 
The  attempt  to  extort  a  bond  from 
ship-owners,  as  a  condition  of  being 
permitted  to  land  those  whom  a  com- 
missioner of  immigration  might  choose 
to  consider  as  coming  within  certain 
enumerated  classes,  has  received  the 
emphatic  and  indignant  condemna- 
tion of  the  supreme  court.  Chy  Lung 
v.  Freeman,  92  U.  S.  275,  23  L.  ed. 
550.  But  the  question  which  now 
concerns  us  is:  Does  the  law  under 
consideration  impair  or  destroy  the 
treaty  rights  of  Chinese  residents? 
For  it  may  be  a  part  of  a  system  ob- 
viously designed  to  effect  that  pur- 
pose, and  yet  not  of  itself  be  produc- 
tive of  that  result.  Its  practical 
operation  and  effect  must,  therefore, 
be  adverted  to. 

' '  The  advantages  of  combining 
capital,  and  restricting  individual  lia- 
bility, by  the  formation  of  corpora- 
tions, have,  from  the  organization  of 
this  state,  been  recognized  by  its  laws. 
That  method,  now  universal  through- 
out the  civilized  world,  in  the  prosecu- 
tion of  great  enterprises,  has  in  this 
state  received  an  unprecedented  de- 
velopment. Its  laws  permit  the  form- 
ation of  corporations  for  any  pur- 
pose for  which  individuals  may  law- 
fully associate,  and  the  corporations 
already  formed  cover  almost  every 
field  of  human  activity.  The  num- 
ber of  certificates  on  file  in  the  clerk 's 
office  of  this  county  alone  was  stated 


§    200]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


234 


the  federal  Constitution  absolutely  to  forbid  Chinese  to  labor 
to  obtain  a  living,  the  state  cannot  procure  the  same  result  by 
prohibiting  corporations  from  employing  them,  as  that  would 
be  to  accomplish  indirectly  what  it  cannot  do  directly. 


§  200.  Property  includes  right  to  labor. — Property  includes 
everything  which  has  an  exchangeable  value,  and  consequently, 
in  a  legal  sense,  labor  is  property.  Next  in  importance  to  the 


at  the  hearing  to  be  8,397.  The  num- 
ber in  the  entire  state  is  of  course 
far  greater.  They  represent  a  very 
large  proportion  of  the  capital  and 
industry  of  the  state.  The  employ- 
ment of  Chinese,  directly  or  indi- 
rectly, in  any  capacity  by  any  of 
these  corporations  is  prohibited  by 
the  law.  No  enumeration  would,  I 
think,  be  attempted  of  the  privileges, 
immunities,  and  exemptions  of  the 
most  favored  nation,  or  even  of  man 
in  civilized  society,  which  would  ex- 
clude the  right  to  labor  for  a  living. 
It  is  as  inviolable  as  the  right  of 
property,  for  property  is  the  offspring 
of  labor.  It  is  as  sacred  as  the  right 
to  life,  for  life  is  taken  if  the  means 
whereby  we  live  be  taken.  Had  the 
labor  of  the  Irish  or  Germans  been 
similarly  prescribed,  the  legislation 
would  have  encountered  a  storm  of 
just  indignation.  The  right  of  per- 
sons of  those  or  other  nationalities 
to  support  themselves  by  their  labor 
stands  on  no  other  or  higher  ground 
than  that  of  the  Chinese.  The  lat- 
ter have  even  the  additional  advan- 
tage afforded  by  the  express  and 
solemn  pledge  of  the  nation. 

' '  That  the  unrestricted  immigration 
of  the  Chinese  to  this  country  is  a 
great  and  growing  evil,  that  it  presses 
with  much  severity  on  the  laboring 
classes,  and  that,  if  allowed  to  con- 
tinue in  numbers  bearing  any  con- 
siderable proportion  to  that  of  the 


teeming  population  of  the  Chinese 
Empire,  it  will  be  a  menace  to  our 
peace  and  even  to  our  civilization, 
is  an  opinion  entertained  by  most 
thoughtful  persons.  The  demand, 
therefore,  that  the  treaty  shall  be  re- 
scinded or  modified  is  reasonable  and 
legitimate.  But  while  that  treaty  ex- 
ists, the  Chinese  have  the  same  rights 
of  immigration  and  residence  as  are 
possessed  by  any  other  foreigners. 
Those  rights  it  is  the  duty  of  the 
courts  to  maintain,  and  of  the  gov- 
ernment to  enforce. 

"The  declaration  that  'the  Chinese 
must  go,  peaceably  or  forcibly'  is  an 
insolent  contempt  of  national  obliga- 
tions and  an  audacious  defiance  of 
national  authority.  Before  it  can  be 
carried  into  effect  by  force  the  au- 
thority of  the  United  States  must 
first  be  not  only  defied,  but  resisted 
and  overcome.  The  attempt  to  effect 
this  object  by  violence  will  be  crushed 
by  the  power  of  the  government.  The 
attempt  to  attain  the  same  'object 
indirectly  by  legislation  will  be  met 
with  equal  firmness  by  the  courts; 
no  matter  whether  it  assumes  the 
guise  of  an  exercise  of  the  police 
power,  or  of  the  power  to  regulate 
corporations,  or  of  any  other  power 
reserved  by  the  state;  and  no  mat- 
ter whether  it  takes  the  form  of  a 
constitutional  provision,  legislative 
enactment,  or  municipal  ordinance. ' ' 


235  EMPLOYMENT    OF    ALIENS    ON    PUBLIC    WORKS.  [§    201 

right  to  life  and  liberty  is  the  right  to  make  labor  available  and 
exchangeable  for  other  things  of  value.  The  treaty  with  China 
guarantees  to  the  subjects  of  that  country  certain  privileges  and 
immunities,  which  they  are  entitled  to  enjoy  to  the  same  extent 
as  the  subjects  of  the  most  favored  nation.  They  include  all 
those  rights  which  are  fundamental  and  of  right  belong  to  the  citi- 
zens of  all  free  governments.  Among  these  is  the  right  to  labor 
and  the  right  to  follow  any  lawful  employment  in  a  lawful  man- 
ner.12 

§  201.  Employment  of  aliens  on  public  works. — While  a  state 
has  the  general  power  to  say  to  whom  it  or  its  contractors  will 
give  employment,  still  the  state,  as  the  state,  is  a  member  of  the 
Union,  and  subordinate  in  the  exercise  of  its  general  power  to 
treaties  made  pursuant  to  the  Constitution;  it  cannot  exercise 
such  power  where  it  will  conflict  with  a  treaty.  The  state  of 
Oregon  enacted  a  law  providing  that:  "It  shall  be  unlawful  to 
employ  any  Chinese  laborers  on  any  street,  or  part  of  street,  of 
any  city  or  incorporated  town  of  this  state,  or  on  any  public 
works  or  public  improvement  of  any  character,  except  as  a 
punishment  for  crime,  and  all  contracts  which  any  person  or  cor- 
poration may  have  for  the  improvement  of  any  such  street,  or 
part  of  street,  or  public  works  or  improvement  of  any  character, 
shall  be  null  and  void  from  and  after  the  date  of  the  employment 
of  any  Chinese  laborers  thereon  by  the  contractor."  13  A  bill  in 
equity  was  filed  to  obtain  an  injunction  to  enjoin  the  city  of 
Portland  from  enforcing  the  act,  and  while  a  demurrer  was 
sustained  upon  other  grounds,  the  court  held  that  the  act  of  the 
legislature  was  void,  because  in  conflict  with  the  treaty  which 
secured  to  the  Chinese  residents  of  the  United  States  the  same 
right  to  be  employed  and  labor  for  a  living  as  the  subjects  of 
any  other  nation.14  Judge  Deady  referred  to  the  treaty  be- 
tween China  and  the  United  States  and  said:  "This  treaty,  until 

12  In   re   Tiburcio   Parrott,   6   Saw.  Field  in  the  'Queue  Ordinance  Case' 
349,  1   Fed.   48.  lately  decided  in  the  circuit  court  for 

13  Sess.  Laws  1872,  p.  9.  the    district    of    California    (Ho    Ah 

14  Baker  v.   Portland,   5   Saw.   566,  Kow  v.  Nunan,  Case  No.  6546,  5  Saw. 
2  Fed.  Gas.  No.  777.     In  the  course  552),  to  the  national  government  'be- 
of  the  opinion  it  was  said  by  Judge  long     exclusively     the     treaty-making 
Deady:  "As  was  said  by  Mr.  Justice  power    and    the    power    to    regulate 


§  201]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES. 


236 


it  is  abrogated  or  modified  by  the  political  department  of  the 
government,  is  the  supreme  law  of  the  land,  and  the  courts  are 
bound  to  enforce  it  fully  and  fairly.  An  honorable  man  keeps 


commerce  with  foreign  nations,  which 
includes  intercourse  as  well  as  traffic. 
....  That  government  alone  can  de- 
termine what  aliens  shall  be  per- 
mitted to  land  within  the  United 
States  and  upon  what  conditions  they 
shall  be  permitted  to  land.' 

"It  will  be  observed  that  the 
treaty  recognizes  the  right  of  the 
Chinese  to  change  their  home  and  al- 
legiance and  to  visit  this  country  and 
become  permanent  residents  thereof, 
and  as  such  residents  it  guarantees 
to  them  all  the  privileges  and  im- 
munities that  may  be  enjoyed,  here 
by  the  citizens  or  subjects  of  any 
nation.  Therefore,  if  the  state  can 
restrain  and  limit  the  Chinese  in  their 
labor  and  pursuits  within  its  limits, 
it  may  do  the  same  by  the  subjects 
of  Great  Britain,  France,  or  Ger- 
many. 

' '  True,  this  act  does  not  undertake 
to  exclude  the  Chinese  from  all  kinds 
and  fields  of  employment.  But  if 
the  state,  notwithstanding  the  treaty, 
may  prevent  the  Chinese  or  the  sub- 
jects of  Great  Britain  from  working 
upon  street  improvements  and  pub- 
lic works,  it  is  not  apparent  why  it 
may  not  prevent  them  from  engaging 
in  any  kind  of  employment  or  work- 
ing at  any  kind  of  labor. 

"Nor  can  it  be  said  with  any  show 
of  reason  or  fairness  that  the  treaty 
does  not  contemplate  that  the  Chinese 
shall  have  the  right  to  labor  while 
in  the  United  States.  It  impliedly 
recognizes  their  right  to  make  this 
country  their  home,  and  expressly 
permits  them  to  become  permanent 
residents  here;  and  this  necessarily 
implies  the  right  to  live  and  to  labor 
for  a  living.  It  is  difficult  to  con- 


ceive a  grosser  case  of  keeping  the 
word  of  promise  to  the  ear  and  break- 
ing it  to  the  hope  than  to  invite 
Chinese  to  become  permanent  resi- 
dents of  this  country  upon  a  direct 
pledge  that  they  shall  enjoy  all  the 
privileges  here  of  the  most  favored 
nation,  and  then  to  deliberately  pre- 
vent them  from  earning  a  living,  and 
thus  make  the  proffered  right  of  resi- 
dence a  mere  mockery  and  deceit.  In 
Chapman  v.  Toy  Long  (Case  No. 
2610,  4  Saw.  28),  this  court  in 
considering  these  provisions  of  this 
treaty,  said :  '  The  right  to  reside  in 
the  country,  with  the  same  privi- 
leges as  the  subjects  of  Great  Britain 
or  France,  implies  the  right  to  fol- 
low any  lawful  calling  or  pursuit 
which  is  open  to  the  subjects  of  these 
powers. ' 

"Whether  it  is  best  that  the 
Chinese  or  other  people  should  be 
allowed  to  come  to  this  country  with- 
out limit  and  engage  in  its  indus- 
trial pursuits  without  restraint  is  a 
serious  question,  but  one  which  be- 
longs solely  to  the  national  govern- 
ment. Upon  it  there  has  always  been 
a  difference  of  opinion,  and  prob- 
ably will  be  for  years  to  come. 

1 '  But  so  far  as  this  court  and  the 
case  before  it  is  concerned,  the  treaty 
furnishes  the  law,  and  with  that  treaty 
no  state  or  municipal  corporation 
thereof  can  interfere.  Admit  the 
wedge  of  state  interference  ever  so 
little,  and  there  is  nothing  to  pre- 
vent its  being  driven  home  and  de- 
stroying the  treaty  and  overriding 
the  treaty-making  power  altogether. ' ' 
Baker  et  al.  v.  Portland,  2  Fed.  Cas. 
No.  777,  5  Saw.  5(56. 


237  RIGHT  TO  ADMINISTRATION.  [§    202 

his  word  under  all  circumstances,  and  an  honorable  nation  abides 
by  its  treaty  obligations,  even  to  its  own  disadvantage.  The 
state  cannot  legislate  so  as  to  interfere  with  the  operation  of 
this  treaty  or  limit  or  deny  the  privileges  or  immunities  guar- 
anteed loy  it  to  the  Chinese  residents  in  this  country." 

The  provision  of  the  New  York  statute  making  it  a  crime  for 
a  contractor  with  a  municipal  corporation  for  the  construction  of 
public  works  to  employ  an  alien  as  laborer  on  such  works  is 
void  not  only  because  it  is  an  unlawful  interference  with  the 
personal  liberty  of  the  citizen,  and  a  denial  of  due  process  of  law, 
but  also  of  treaties  providing  that  foreign  citizens  residing  in  the 
United  States  shall  enjoy  the  same  rights  and  privileges  in  re- 
spect to  their  persons  and  property  as  are  secured  to  American 
citizens.15 

§  202.  Right  to  administration. — A  consul  of  a  foreign  coun- 
try is  entitled  to  administer  upon  the  estate  of  subjects  of  his 
country  dying  intestate,  and  the  clause  in  a  treaty  giving  him 
"the  right  to  intervene  in  the  possession,  administration,  and 
judicial  liquidation  of  the  estate  of  the  deceased"  will  have  the 
effect  of  superseding  a  state  law  giving  the  right  of  administra- 
tion to  a  local  officer.  The  power  conferred  upon  the  consul 
by  the  words  above  quoted  is  not  limited  by  the  succeeding  words 
* '  conformably  with  the  laws  of  the  country  for  the  benefit  of  the 
creditors  and  legal  heirs."  These  words  relate  merely  to  the 
procedure  of  administration  and  not  to  the  right  to  administer. 
The  fact  that  a  treaty  cannot  be  reconciled  with  a  state  law  is 
no  reason  why  a  state  court  should  not  enforce  it.16 

In  the  treaty  with  Italy,  the  right  to  administer  was  not  spe- 
cially mentioned,  but  the  treaty  contained  a  clause  to  the  effect 
that  the  respective  consuls  shall  enjoy  in  both  countries  "all  the 
rights,  prerogatives,  immunities  and  privileges  which  are  now  or 
may  hereafter  be  granted  to  the  officers  of  the  same  grade  of  the 
most  favored  nation."  But  the  ninth  article  of  the  treaty  with 

15  People  v.  Warren,  13  Misc.  Rep.  constitution,       and      is      inalienable. 

615,  34  N.  Y.  Supp.  942.     Among  the  Greenhood's  Pub.  Pol.,  rule  CCCIII; 

rights  of  personal  liberty  is  that  of  In  re  Baker,  29  How.  Pr.  485. 

making    contracts,    of    laboring    for  16  Matter  of  Lobrasciano,  38  Misc. 

others,    and    of    employing    others    to  Eep.  415,  77  N.  Y.  Supp.  1040. 
labor.     Such  right  is  secured  by  the 


§    203]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  238 

the  Argentine  Republic  provided  that  "If  any  citizen  of  the  two 
contracting  parties  shall  die  without  will  or  testament  in  any  of 
the  territories  of  the  other,  the  consul-general,  or  consul  of  the 
nation  to  which  the  deceased  belonged,  or  the  representatives  of 
such  consul-general  or  consul  in  his  absence  shall  have  the  right 
to  intervene  in  the  possession,  administration  and  judicial  liquida- 
tion of  the  estate  of  the  deceased,  conformably  for  the  benefit 
of  the  creditors  and  legal  heirs."  It  was  held  in  the  surrogate's 
court  of  New  York  that  under  the  most  favored  nation  clause  in 
the  treaty  with  Italy,  the  privileges  granted  to  consuls  of  the 
Argentine  Eepublic  were  also  granted  to  those  of  Italy,  and 
hence  the  consuls  of  that  country  had  the  paramount  right  to 
take  possession  of  the  estates  of  Italian  subjects  dying  intestate 
within  his  consulor  jurisdiction  and  administer  them.17 

Under  the  treaty  of  1832  between  the  United  States  and  Rus- 
sia 18  the  two  contracting  powers  have  the  liberty  of  having  con- 
suls in  their  respective  ports,  who  are  to  enjoy  the  privileges 
and  powers  granted  to  those  of  the  most  favored  nation.  As 
the  most  favored  nation  clause  of  the  treaty  of  1853  with  the 
Argentine  Republic  19  provides  that  if  any  citizen  of  either  of 
the  two  contracting  parties  should  die  without  will  or  testa- 
ment in  the  territory  of  the  other,  the  consul-general  or  consul 
of  the  nation  to  which  the  deceased  belonged,  or  his  representa- 
tive, shall  have  the  right  to  intervene  in  the  possession,  adminis- 
tration and  liquidation  of  the  estate  of  the  deceased,  it  follows 
that  where  a  Russian  subject  dies  intestate,  leaving  personal 
property,  the  Russian  vice-consul  is  entitled  to  the  appointment 
of  administrator  of  the  estate  to  the  exclusion  of  the  public  ad- 
ministrator, who,  in  the  absence  of  such  a  provision,  would  be 
entitled  to  administer.20 

§  203.  Power  of  court  to  appoint  attorney  for  absent  heirs 
displaced  by  treaty. — The  power  of  a  court  to  appoint  an  attor- 

17  Matter    of    Fattosini,    33    Misc.  18  8  Stats.  848. 

Rep.   18,   67  N.   Y.   Supp.   119.     The  19  10  Stats.  1001. 

correctness  of  this  decision  was  ques-  20  In  re  Wyman,  191  Mass.  276,  114 

tioned  by  Surrogate  Thomas  in  Matter  Am.    St.    Eep.    601,    77    N.    E.    379. 

of  Logiorato,   34  Misc.  Eep.   31,  69  But   see    Succession   of    Thompson,    9 

N.    Y.    Supp.    507,    but    it    was    ap-  La.   Ann.   96;    Sturgis  v.    Slacum,   35 

proved  in  Matter  of  Lobrasciano,  38  Mass.  (18  Pick.)  36;  Ferrie  v.  Public 

Misc.  Eep.  415,  77  N.  Y.  Supp.  1040.  Administrator,  3  Bradf.  Sur.  249. 


239  STATE   PILOTAGE   LAWS.  [§    204 

Dey  for  absent  heirs  authorized  by  a  provision  of  the  code  is 
displaced  by  a  treaty  providing  that  upon  the  death  of  a  citi- 
zen of  a  foreign  country  in  the  United  States,  without  any  testa- 
mentary executor  appointed  by  him,  the  consul  shall  have  the 
right  to  appear  personally  or  by  delegate  in  all  proceedings  on 
behalf  of  the  absent  or  minor  heirs.21  As  to  this  provision  being 
within  the  scope  of  the 'treaty-making  power,  Mr.  Justice  Miller, 
speaking  for  the  court,  said:  "It  is  idle  to  call  in  question  the 
competency  of  the  treaty-making  power,  nor  do  we  think  any 
question  can  be  raised  that  the  subject  of  this  treaty  under  dis- 
cussion here  is  properly  within  the  scope  of  the  power.  That 
subject  is  the  rights  of  French  subjects  to  be  represented  here 
by  the  consul  of  their  country.  On  that  subject4he  treaty  pro- 
vision is  plain.  The  treaty  by  the  organic  law  is  the  supreme 
law  of  the  land,  binding  all  courts,  state  and  federal. ' ' 22 

§  204.  State  pilotage  laws. — A  provision  in  a  treaty  that  "no 
higher  or  other  duties  or  charges  shall  be  imposed  in  any  ports 
of  the  United  States  on  British  vessels  than  those  payable  in 
the  same  ports  by  vessels  of  the  United  States"  will  not  super- 
sede state  pilotage  laws  as  applied  to  a  British  vessel  coming 
from  a  foreign  port,  because  of  the  exemption  of  coastwise  ves- 
sels of  the  United  States  from  pilotage  under  the  Revised  Stat- 
utes of  the  United  States,  or  on  account  of  any  lawful  exemption 
of  coastwise  vessels  created  by  the  laws  of  the  state.23 

The  regulations  of  a  state  providing  for  the  appointment  of 
pilots  and  restricting  the  right  to  pilot  to  those  who  may  re- 
ceive such  appointment  do  not  infringe  any  inherent  rights 
guaranteed  by  the  federal  Constitution,  nor  do  they  creat  a 
monopoly  or  combination  forbidden  by  the  federal  anti-trust 
laws.24 

21  Succession    of    Eobasse,  47    La.  purpose  is  accomplished  by  placing 
Ann.   1452,  49  Am.  St.  Rep.  433,  17  the    delegate    before    the    court,    as 
South.  867.  representing   the    absent    heirs,    and 

22  Succession    of    Robasse,  47    La. '  precluding    any    attorney    to    repre- 
Ann.   1452,  49  Am.   St.  Rep.  433,   17  sent  them." 

South.  867.     Said  the  court  further:  23  Olsen   v.   Smith,    195   U.   S.   332, 

"The  treaty  discloses  no  purpose  to  25  Sup.  Ct.  Rep.  52,  49  L.  ed.  224. 

require  our  courts  to  appoint  as  the  24  Olsen   v.    Smith,    195   U.   S.   332, 

attorney    for    the    absent    heirs    the  25  Sup.  Ct.  Rep.  52,  49  L.  ed.  224. 
delegate  of  the  French  consul.     Its 


§§  205,  206]   TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.    240 

§  205.  Trademarks  protected  by  treaty. — Treaties  frequently 
provide  for  the  protection  of  trademarks.  But  what  constitutes 
a  trademark  may  be  a  subject  of  discussion.  Under  the  laws  of 
Germany,  words  alone,  and  apart  from  some  symbol  or  design, 
are  not  the  subject  of  appropriation  for  a  trademark.  The  pro- 
vision, however,  in  the  treaty  with  Germany  that  citizens  of  that 
country  .shall  enjoy  in  the  United  States  the  same  protection  as 
native  citizens  in  matters  of  trademarks  will  not  prevent  a  citi- 
zen of  Germany  from  acquiring  by  prior  use  in  the  United  States 
a  trademark  in  a  particular  word.25  Nor  will  the  provision  in 
a  treaty  that  if  a  trademark  has  become  public  property  in  the 
country  of  its  origin,  it  shall  likewise  be  free  in  the  territory  of 
the  other  party,  interfere  with  the  appropriation  in  this  country 
by  prior  use  of  a  word  which  cannot  be  made  the  subject  of  ap- 
propriation in  the  other  country,  party  to  the  treaty.26 

§  206.  Persons  adding  to  the  prevalence  of  disease. — A  stat- 
ute of  Louisiana  empowered  the  state  board  of  health  in  its  dis- 
cretion to  "  prohibit  the  introduction  into  any  infected  portion 
of  the  state  of  persons  acclimated  or  unacclimated  or  said  to  be 
immune,  when  in  its  judgment  the  introduction  of  such  persons 
would  add  to  or  increase  the  prevalence  of  the  disease."  It  was 
held  that  this  statute  was  not  unconstitutional  as  infringing  upon 
the  right  and  power  of  Congress  to  regulate  commerce,  nor  was 
it  in  contravention  of  the  treaties  with  France  and  Italy.27  This 
case  came  before  the  supreme  court  of  the  United  States.  By  a 
divided  court  the  statute  was  held  not  to  be  in  conflict  either 
with  the  Constitution  or  with  any  treaty.  As  to  the  claim 
that  it  conflicted  with  treaty  provisions,  Mr.  Justice  White,  who 
delivered  the  opinion  of  the  court,  said  that,  assuming  that  the 
treaties  were  applicable,  they  were  not  intended  to,  and  did  not, 
deprive  the  government  of  the  United  States  of  those  powers 
whose  exercise  was  necessary  for  the  health  and  safety  of  the 
people,  and  that  if  the  treaties  were  to  have  the  effect  claimed, 

23  Baltz     Brewing    Co.    v.     Kaiser-  2T  Compagnie  Francaise  etc.  v.  State 

brauerei,    74   Fed.    222,    20    C.    C.    A.  Board  of  Health,  51  La.  Ann.  645,  72 

402.  Am.  St.  Eep.  458,  25  South.  591,  56 

26  Baltz     Brewing    Co.     v.     Kaiser-  L.  E.  A.  795. 
brauerei,    74   Fed.    222,   20   C.    C.   A. 
402. 


241  VIEWS  OF  MAJORITY  OF  COURT.  [§  207 

they  would  be  equally  operative  against  a  quarantine  established 
by  the  United  States  as  by  a  state  government.  Mr.  Justice 
Brown,  with  whom  was  Mr.  Justice  Harlan,  dissented,  and  stated 
that  while  efficient  quarantine  laws  were  necessary,  there  was  no 
authority  in  the  states  to  enact  such  laws  as  would  conflict  with 
treaties  with  foreign  nations.28 

§  207.  Views  of  majority  of  court. — On  the  point  urged  that 
the  statute  as  applied  and  construed  was  void  because  it  was  in 
conflict  with  the  treaties  with  Italy  and  France  guaranteeing  cer- 
tain rights,  privileges  and  immunities  to  the  citizens  of  those 
countries,  Mr.  Justice  White,  voicing  the  opinion  of  the  court, 
said: 

"Reliance  is  placed,  to  sustain  this  proposition,  on  the  provi- 
sions of  a  treaty  concluded  with  the  Kingdom  of  Italy  on  Feb- 
ruary 26,  1871;  on  the  terms  of  a  treaty  with  Great  Britain  on 
July  3,  1815,  as  also  a  treaty  between  the  United  States  and  the 
Kingdom  of  Greece,  concluded  December  22,  1837,  and  one  con- 
cluded with  the  Kingdom  of  Sweden  and  Norway  on  July  4,  1827. 
The  treaties  of  other  countries  than  Italy  are  referred  to  upon 
the  theory  that  as  by  the  treaty  concluded  with  France  on  April  30, 
1803,  by  which  Louisiana  was  acquired,  it  was  provided  that 
France  should  be  treated  upon  the  footing  of  the  most  favored 
nation  in  the  ports  of  the  ceded  territory,  therefore  the  treaties 
in  question  made  with  other  countries  than  France  were  ap- 
plicable to  the  plaintiff  in  error,  a  French  subject. 

"Conceding,  arguendo,  this  latter  proposition,  and  therefore 
assuming  that  all  the  treaties  relied  on  are  applicable,  we  think  it 
clearly  results  from  their  context  that  they  were  not  intended  to, 
and  did  not,  deprive  the  government  of  the  United  States  of  those 
powers  necessarily  inhering  in  it  and  essential  to  the  health  and 
safety  of  its  people.  We  say  the  United  States,  because  if  the 
treaties  relied  on  have  the  effect  claimed  for  them,  that  effect 
would  be  equally  as  operative  and  conclusive  against  a  quarantine 
establishment  by  the  government  of  the  United  States  as  it  would 
be  against  a  state  quarantine  operating  upon  and  affecting  for- 
eign commerce  by  virtue  of  the  inaction  of  Congress.  Without 

28  Compagnie     Francaise     v.     State       Board  of  Health,  186  U.  S.  380,  22 
Sup.  Ct.  Eep.  811,  46  L.  ed.  1209. 
Treaties — 16 


§    207]          TREATIES,   STATE   CONSTITUTIONS   AND   STATUTES.  242 

reviewing  the  text  of  all  the  treaties,  we  advert  to  the  provisions 
of  the  one  made  with  Greece,  which  is  principally  relied  upon. 

"It  is  apparent  that  it  provides  only  the  particular  form  of 
document  which  shall  be  taken  by  a  ship  of  the  Kingdom  of 
Greece  and  reciprocally  by  those  of  the  United  States  for  the 
purpose  of  establishing  that  .infectious  or  contagious  diseases  did 
not  exist  at  the  point  of  departure.  But  it  is  plain  from  the  face 
of  the  treaty  that  the  provision  as  to  the  certificate  was  not  in- 
tended to  abrogate  the  quarantine  power,  since  the  concluding 
section  of  the  article  in  question  expressly  subjects  the  vessel 
holding  the  certificate  to  quarantine  detention,  if,  on  its  arrival, 
a  general  quarantine  had  been  established  against  all  ships  com-, 
ing  from  the  port  whence  the  vessel  holding  the  certificate  had 
sailed.  In  other  words,  the  treaty  having  provided  the  certifi- 
cate and  given  it  effect  under  ordinary  conditions,  proceeds  to 
subject  the  vessel  holding  the  certificate  to  quarantine,  if,  on  its 
arrival,  such  restriction  had  been  established  in  consequence  of 
infection  deemed  to  exist  at  the  port  of  departure.  Nothing  in 
the  text  of  the  treaty,  we  think,  gives  even  color  to  the  sug- 
gestion that  it  was  intended  to  deal  with  the  exercise  by  the 
government  of  the  United  States  of  its  power  to  legislate  for  the 
safety  and  health  of  its  people  or  to  render  the  exertion  of  such 
power  nugatory  by  exempting  the  vessels  of  the  Kingdom  of 
Greece,  when  coming  to  the  United  States,  from  the  operation  of 
such  laws.  In  other  words,  the  treaty  was  made  subject  to  the 
enactment  of  such  health  laws  as  the  local  conditions  might  evoke 
not  paramount  to  them.  Especially  where  the  restriction  imposed 
upon  the  vessel  is  based,  not  upon  the  conditions  existing  at  the 
port  of  departure,  but  upon  the  presence  of  an  infectious  or  con- 
tagious malady  at  the  port  of  arrival  within  the  United  States, 
which,  in  the  nature  of  things,  could  not  be  covered  by  the  cer- 
tificate relating  to  the  state  of  the  public  health  at  the  port  whence 
the  ship  had  sailed."29 

29  Compagnie     Francaise     v.     State  ' '  Article     15.      It     is     agreed     that 

Board  of   Health,   Louisiana,   186  U.  vessels    arriving    directly    from    the 

S.  380,  22  Sup.  Ct.  Kep.  811,  46  L.  United  States  of  America  at  a  port 

ed.  1216.     The  language  of  article  15  within  the  dominions  of  His  Majesty 

of  the  treaty  with  Greece  referred  to  the    King    of    Greece,    or    from    the 

in   the   above   opinion  is   as   follows:  Kingdom    of    Greece,    at    a    port    of 


243  DISSENTING  VIEWS.  [§    208 

§  208.  Dissenting  views. — Mr.  Justice  Brown,  in  his  dissent- 
ing opinion,  said  on  the  point  of  the  construction  of  the  treaty 
stipulation : 

"I  am  also  unable  to  concur  in  the  construction  given  in  the 
opinion  of  the  court  to  the  treaty  stipulation  with  France  and 
other  foreign  powers.  The  treaty  with  France  of  1803  provides 
that  'the  ships  of  France  shall  be  treated  upon  the  footing  of  the 
most  favored  nations  in  the  ports  above  mentioned'  of  Louisiana. 
Article  15  of  the  treaty  with  Greece  of  December  22,  1837,  set 
forth  in  the  opinion,  provides  that  vessels  arriving  directly  from 
the  Kingdom  of  Greece  at  any  port  of  the  United  States  of 
America,  'and  provided  with  a  bill  of  health  granted  by  an  of- 
ficer having  competent  power  to  that  effect  at  the  port  whence 
such  vessel  shall  have  sailed,  setting  forth  that  no  malignant  or 
contagious  diseases  prevailed  in  that  port,  shall  be  subjected  to 
no  other  quarantine  than  such  as  may  be  necessary  for  the  visit 
of  the  health  officer  of  the  port  where  such  vessels  shall  have  ar- 
rived, after  which  said  vessels  shall  be  allowed  immediately  to 
enter  and  unload  their  cargoes:  Provided  always,  That  there  shall 
be  on  board  no  person,  who,  during  the  voyage,  shall  have  been 
attacked  with  any  malignant  or  contagious  diseases;  that  such 
vessels  shall  not,  during  their  passage,  have  communicated  with 
any  vessel  liable  itself  to  undergo  a  quarantine;  and  that  the 
country  whence  they  came  shall  not  at  that  time  be  so  far  in- 
fected or  suspected  that,  before  their  arrival,  an  ordinance  had 
been  issued  in  consequence  of  which  all  vessels  coming  from  that 

the   United    States    of    America,   and  person  who,  during  the  voyage,  shall 

provided  with  a  bill  of  health  granted  have  been  attacked  with  any  malig- 

by  an  officer  having  competent  power  nant  or  contagious  disease;  that  such 

to  that  effect  at  the  port  whence  such  vessels  shall  not,  during  the  passage, 

vessel  shall  have  sailed,  setting  forth  have    communicated    with    any    vessel 

that     no     malignant     or     contagious  liable  itself  to  undergo  a  quarantine; 

diseases  prevailed  in  that  port,  shall  and    that    the    country    whence    they 

be   subjected  to   no   other   quarantine  came    shall    not    at    that   time    be    so 

than   such    as    may   be   necessary   for  far  infected  or  suspected  that,  before 

the  visit  of  the  health  officer  of  the  their  arrival,   an  ordinance  had  been 

port    where    such    vessel    shall    have  issued    in    consequence    of    which    all 

arrived,  after  which  said  vessels  shall  vessels     coming     from     that     country 

be  allowed  immediately  to  enter  and  should    be    considered    as    suspected, 

unload    their    cargoes;    Provided,    al-  and   consequently   subject   to   quaran- 

ways,  that  there  shall  be  on  board  no  tine."     8  Stats,  at  Large,  506. 


§    209]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES.  244 

country  should  be  considered  as  suspected,  and  consequently  sub- 
ject to  quarantine.' 

"If  the  law  in  question  in  Louisiana,  excluding  French  ships 
from  all  access  to  the  port  of  New  Orleans,  be  not  a  violation  of 
the  provision  of  the  treaty  that  vessels  'shall  be  subjected  to  no 
other  quarantine  than  such  as  may  be  necessary  for  the  visit  of 
the  health  officer  of  the  port  where  such  vessels  shall  have  ar- 
rived, after  which  said  vessels  shall  be  allowed  immediately  to 
enter  and  unload  their  cargoes,'  I  am  unable  to  conceive  a  state 
of  facts  which  would  constitute  a  violation  of  that  provision. 
Necessary  as  efficient  quarantine  laws  are,  I  know  of  no  author- 
ity in  the  states  to  enact  such  as  are  in  conflict  with  our  treaties 
with  foreign  nations. ' ' 30 

§  209.  South  Carolina  Dispensary  Act.— In  1892  a  statute 
was  passed  in  South  Carolina  prohibiting  the  manufacture  or  sale 
of  intoxicating  liquors  as  a  beverage  in  that  state,  but  providing 
for  the  appointment  of  a  commissioner  who  was  authorized  to 
purchase  all  intoxicating  liquors  for  lawful  sale  in  the  state, 
and  to  furnish  the  same  to  certain  persons  designated  as  dis- 
pensers, who  in  turn  should  sell  them  on  the  conditions  pre- 
scribed by  the  act.  It  was  declared  in  the  statute  that  "the 
manufacture,  sale,  barter,  or  exchange,  or  the  keeping  or  offer- 
ing for  sale,  barter,  trade  or  exchange,  within  this  state  of  any 
spirituous,  malt,  vinous,  fermented  or  other  intoxicating  liquors, 
or  any  compound  or  mixtures  thereof,  by  whatever  name  called, 
which  will  produce  intoxication,  by  any  person,  business,  firm, 
corporation  or  association,  shall  be  regulated  and  conducted  as 
provided  in  this  act."  A  bill  in  equity  was  filed  by  certain 
Italian  subjects  against  the  governor  and  treasurer  of  the  state, 
to  enjoin  them  from  carrying  out  the  provisions  of  this  law,  and 
among  other  grounds  urged,  it  was  contended  that  the  act  was 
in  conflict  with  the  treaty  with  Italy.  The  court  stated  that  the 
complainants  had  under  the  treaty  the  same  rights  as  citizens 
of  the  United  States,  and  that  it  would  be  absurd  to  say  that 
they  had  greater  rights.  The  court  declared  that  the  right  to 
sell  intoxicating  liquors  is  within  the  police  power  of  the  states, 
and  that  "The  police  power  is  a  right  reserved  by  the  states,  and 

30  Compagnie  Francaise  v.  State  S.  380,  22  Sup.  Ct.  Kep.  811,  46  L. 
Board  of  Health  of  Louisiana,  186  U.  .ed.  1209. 


245         TREATY  DEVESTING  STATE  OF  RIGHT  TO  TAX.     [§  210 

has  not  been  delegated  to  the  general  government.  In  its  law- 
ful exercise,  the  states  are  absolutely  sovereign.  Such  exercise 
cannot  be  affected  by  any  treaty  stipulations. ' ' 31 

§  210.  Treaty  devesting  state  of  right  to  tax. — A  treaty  may 
exempt  a  foreign  citizen  from  the  payment  of  a  succession  tax, 
either  by  direct  language  or  by  implication  under  the  favored 
nation  clause.  The  statute  of  Louisiana  provided  that  "every 
person  not  domiciled  in  this  state,  and  not  being  a  citizen  of 
any  state  or  territory  of  the  Union,  who  shall  be  entitled,  whether 
as  heir,  legatee,  or  donee,  to  the  whole  or  any  part  of  the  suc- 
cession of  a  person  deceased,  whether  such  person  shall  have 
died  in  this  state  or  elsewhere,  shall  pay  a  tax  for  the  benefit 
of  the  Charity  Hospital  of  ten  per  cent  on  all  sums  due,  on  the 
value  of  all  property  which  may  have  actually  been  received  from 
said  succession,  or  so  much  thereof  as  is  situated  in  this  state, 
after  deducting  all  debts  due  by  the  said  succession."  Re- 
sistance to  a  demand  for  the  payment  of  this  tax  was  based  on 
the  provisions  of  the  Italian  treaty  of  1871  that:  "The  citizens 
of  each  of  the  contracting  parties  shall  have  power  to  dispose 
of  their  personal  goods  within  the  jurisdiction  of  the  other,  by 
sale,  donation,  testament,  or  otherwise;  and  their  representatives, 
being  citizens  of  the  other  party,  shall  succeed  to  their  personal 
goods,  whether  by  testament  or  ab  intestato,  and  they  may 
take  possession  thereof,  either  by  themselves,  or  others  acting  for 
them,  and  dispose  of  the  same  at  their  will,  paying  such  duties 
only  as  the  inhabitants  of  the  country  wherein  such  goods  are 

31  Cantini  v.  Tillman,  54  Fed.  969,  submitting    themselves    to    the    laws 

per    Simonton,    District    Judge.      The  there  established. 

language   of   the   treaty  relied  on  in  "Art.     3.      The    citizens    of    each 

that  case  was:  of  the  high  contracting  parties  shall 

' '  Art.  2.  The  citizens  of  each  receive  in  the  states  and  territories 
of  the  high  contracting  parties  shall  of  the  other  the  most  constant  pro- 
have  liberty  to  travel  in  the  states  tection  and  security  for  their  persons 
"and  territories  of  the  other;  to  carry  and  property,  and  shall  enjoy  in  this 
on  trade,  wholesale  and  retail;  to  hire  respect  the  same  rights  and  privileges 
and  occupy  houses  and  warehouses ;  to  as  are  or  shall  be  granted  to  the 
employ  agents  of  their  choice;  and  natives,  on  their  submitting  them- 
generally  to  do  anything  incident  to  selves  to  the  conditions  imposed  upon 
or  necessary  for  trade,  upon  the  same  the  natives." 
terms  as  the  natives  of  the  country, 


§    211]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  216 

shall  be  subject  to  pay  in  like  cases.  As  for  the  case  of  real 
estate,  the  citizens  and  subjects  of  the  two  contracting  parties 
shall  be  treated  on  the  footing  of  the  most  favored  nation." 
For  the  purpose  of  determining  what  rights  were  conferred  by 
the  clause  that  the  citizens  of  the  foreign  country  should,  in  the 
case  of  real  estate,  "be  treated  on  the  footing  of  the  most  favored 
nation,"  the  court  proceeded  to  examine  treaties  made  with 
other  nations,  and  as  in  some  other  treaties  provisions  existed 
declaring  that  foreign  citizens  might  enjoy  real  property  in  the 
same  manner  as  citizens  of  the  United  States,  and  should  not  be 
subjected  to  taxes  on  transfer  or  inheritance  different  from  those 
paid  by  American  citizens,  or  to  taxes  which  should  not  be 
equally  imposed,  the  court  held  that  subjects  of  Italy  were  ex- 
empt from  the  payment  of  this  tax  levied  against  foreign  heirs.32 
Likewise,  it  was  held  that  foreign  citizens  were  exempt  from  the 
payment  of  this  tax  under  the  treaty  with  France  33  and  Bavaria.34 
But  where  the  tax  has  become  vested  in  the  state  before  the 
conclusion  of  a  treaty,  a  treaty  subsequently  made  cannot  devest 
the  right  to  the  tax.35  This  is  true,  not  only  where  the  words 
of  the  treaty  are  doubtful,  but  also  even  if  the  words  of  the  treaty 
had  imported  such  an  intention.36 

It  was  held  in  Louisiana  that  the  words  "personal  goods"  in 
the  treaty  of  1795  between  the  United  States  and  Spain  refer 
to  movable  property  only,  and  that  the  only  action  taken  by 
the  two  governments  respecting  real  estate  was  to  provide  for 
the  consequences  of  the  special  case  where  foreign  citizens  should 
be  prohibited  from  inheriting  real  estate.  Hence  a  succession  or 
inheritance  tax  may  be  charged  on  foreign  heirs  and  legatees.37 

§  211.  Criminal  procedure. — While  a  foreign  citizen  is  en- 
titled to  the  equal  protection  of  the  laws,  he  cannot  claim  more. 

32  Succession  of  Rixner,  48  La.  Ann.      412.     See  Amat  's  Succession,  18  La. 
563,  19  South.  601,  32  L.  B.  A.  189.       Ann.  403. 

In    Succession    of    Eobasse,    49    La.  34  Crusui's  Succession,  19  La.  Ann. 

Ann.  1413,  22  South.  767,  the  author-  369. 

ities  are  reviewed,  and  Succession  of  "5  Prevost    v.    Greenaux,    19    How. 

Kixner,   48   La.   Ann.   558,   19   South.  (TJ.   S.)    1,  15  L.  ed.  572. 

597,   32  L.   E.   A.   177,   affirmed.  36  Prevost    v.    Greenaux,    19    How. 

33  Dufour's  Succession,  19  La.  Ann.  (U.  S.)    1,  15  L.  ed.  572. 

391;     Prevost  ;s    Succession,    12    La.  37  Succession  of  Sala,  50  La.  Ann. 

Ann.    577;    Marquis    de    Circe's    Sue-       1009,  24  South.  674. 
cession,  Manning's  Unreported  Cases, 


247  CONSULS  ACTING  AS  JUDGES.  [§  212 

In  the  "Anarchist  Cases"  of  Chicago  it  was  claimed  in  the  su- 
preme court  of  the  United  States  that  certain  federal  questions 
were  involved,  and  among  other  suggestions  made  in  behalf  of 
two  of  the  petitioners — one  of  whom  was  born  in  Germany  and 
the  other  in  Great  Britain — was  that  they  had  been  denied  by 
the  state  court  rights  guaranteed  to  them  by  treaties  between 
the  United  States  and  their  respective  countries.  The  court 
said  that  as  to  this  contention  it  was  sufficient  to  say  that  no  such 
questions  were  made  or  decided  in  the  courts  below,  and  they 
could  not  be  raised  in  the  supreme  court  of  the  United  States  for 
the  first  time.  While  of  course  it  is  a  dictum,  not  necessary  to 
the  decision,  yet  it  should  be  observed  that  Mr.  Chief  Justice 
Waite,  in  delivering  the  opinion  of  the  court,  added:  "Besides,  we 
have  not  been  referred  to  any  treaty,  neither  are  we  aware  of 
any,  under  which  such  a  question  could  be  raised. ' '  38 

§  212.  Consuls  acting  as  judges. — Courts  of  a  state  may  be 
deprived  by  a  treaty  of  jurisdiction  exercised  by  them  over  a  cer- 
tain class  of  actions  or  proceedings.  The  treaty  between  the 
United  States  and  Norway  provides  that  "the  consuls,  vice-con- 
suls, or  commercial  agents,  or  the  persons  duly  authorized  to 
supply  their  places,  shall  have  the  right  as  such  to  sit  as  judges 
and  arbitrators  on  such  differences  as  may  arise  between  the 
captains  and  crews  of  the  vessels  belonging  to  the  nation,  whose 
interests  are  committed  to  their  charge,  without  the  interference 
of  the  local  authorities,  unless  the  conduct  of  the  crews  or,  of 
the  captain  should  disturb  the  order  or  tranquility  of  the 

38  Ex  parte  Spies,  123  U.  S.  131,  8  Sup.    Ct.    Kep.    195,    32    L.    ed.    642; 

Sup.    Ct.    Kep.    21,    31    L.    ed.    80.  Manning   v.   French,    133   U.   S.   191, 

That    to    authorize    a    writ    of    error  10  Sup.  Ct.  Eep.  260,  33  L.  ed.  585; 

to  a  state  court,  the  question  involved  Northern  Pac.  Ey.  Co.  v.  Austin,  135 

must  have  been  decided  in  the  court  U.  S.  318,  10  Sup.  Ct.  Eep.  759,  34  L. 

below,  see  Chappell  v.  Bradshaw,  128  ed.  219;  Brown  v.  Massachusetts,  144 

U.  S.  134,  9  Sup.  Ct.  Eep.  40,  32  L.  U.  S.  579,  12   Sup.  Ct.  Eep.  759,  36 

eu.  370;  Brooks  v.  Missouri,  124  U.  S.  L.  ed.  550;  McNulty  v.  California,  149 

394,  8   Sup.  Ct.  Eep.  443,  31  L.  ed.  U.  S.  648,  13  Sup.  Ct.  Eep.  960,  37 

456 ;  Leeper  v.  Texas,  139  U.  S.  467,  L.   ed.   884 ;    Schuyler   Nat.  Bank   v. 

11  Sup.  Ct.  Eep.  579,  35  L.  ed.  227;  Bollong,   150   U.   S.   88,   14   Sup.   Ct. 

French  v.  Hopkins,  124  U.  S.  524,  8  Eep.    25,    37    L.    ed.    1009;    Morrison 

Sup.    Ct.    Eep.    589,    31    L.    ed.    537 ;  v.  Watson,  154  U.  S.  115,  14  Sup.  Ct. 

Baldwin  v.  Kansas,   129  U.  S.  57,  9  Eep.  997,  38  L.  ed.  929. 


§    212]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES. 


248 


country,  or  the  said  consuls,  vice-consuls,  or  commercial  agents 
should  require  their  assistance  to  cause  their  decisions  to  be 
carried  into  effect  or  supported.  It  is,  however,  understood, 
that  this  species  of  judgment  or  arbitration  shall  not  deprive  the 
contending  parties  of  the  right  they  have  to  resort,  on  their 
return,  to  the  judicial  authority  of  their  country."39  It  is 
almost  uniformly  decided  that  such  a  treaty  takes  away  all 
right  of  action  for  wages  in  the  courts  of  the  United  States  by 
a  seaman  coming  within  the  purview  of  the  treaty,  regardless 
of  the  question  whether  the  action  is  in  rem  or  in  personam.40 

A  libel  for  wages  brought  by  an  American  seaman  against  a 
German  vessel,  where  he  had  shipped  on  board  and  claimed  to 
be  entitled  to  a  discharge,  was  dismissed,  although  the  judge 
stated  that  if  the  fact  had  been  proved  that  a  discharge  had 
been  granted,  he  would  have  been  inclined  to  assume  jurisdic- 
tion.41 

A  citizen  of  the  United  States  brought  a  libel  against  a  Nor- 
wegian steamship  for  damages  and  for  wages.  He  alleged  that 
he  shipped  on  the  vessel  at  Mobile  for  a  round  voyage  to  Tampico, 
and  that  when  he  arrived  in  Mobile  Bay,  on  the  return  trip. 


39  8  U.  S.  Stats.  346,  352. 

40  Tellefsen  v.  Fee,  168  Mass.  188, 
60  Am.  St.  Eep.  379,  46  N.  E.  562, 
45  L.  E.  A.  481;  The  Elwine  Kreplin, 
9  Blatchf.  438,  Fed.  Gas.  No.  4426; 
Norberg  v.  Hillgren,   5   N.  Y.   Leg. 
Obs.  177;  The  Salomon!,  29  Fed.  534; 
The    Burchard,    42    Fed.    608;     The 
Marie,  49   Fed.   286;    The  Welhaven, 
55  Fed.  80. 

In  Tellefsen  v.  Fee,  supra,  the 
court  said:  "An  examination  of  the 
treaty  and  authorities  above  cited 
makes  it  plain  that  the  court  has 
no  discretion  in  the  matter,  and  that 
the  local  authorities  have  no  right  to 
interfere.  Where  jurisdiction  is  given 
by  a  treaty  to  a  consul,  vice-consul,  or 
a  commercial  agent,  he  alone  has 
authority  to  act  in  determining  in 
the  first  instance  whether  wages  are 
due  and  the  amount.  It  is  to  be 
remembered  that  the  United  States 


government  has  the  same  right  by  the 
treaty  in  regard  to  its  vessels  in 
Norway;  and  this  right  is  insisted 
upon  by  our  government.  In  the 
United  States  Consular  Eegulations  of 
1888,  page  25,  paragraph  66,  under 
the  title  '  Jurisdiction  over  Disputes 
Between  Masters,  Officers  and  Crews/ 
appears  the  following:  'Exclusive 
jurisdiction  over  such  disputes  in  the 
vessels  of  the  United  States,  including 
question  of  wages,  is  conferred  by 
treaties  or  conventions  with7  several 
governments  named,  and  among  them 
Sweden  and  Norway.  And  on  page 
92,  paragraph  273,  is  also  the  follow- 
ing: 'In  many  instances,  by  treaty 
and  consular  convention,  the  United 
States  have  secured  to  their  consular 
officers  jurisdiction  over  question  of 
wages,  shipment  and  discharge  of  sea- 
men.' " 

41  The  Burchard,  42  Fed.  608. 


249 


MUNICIPAL,  ORDINANCES. 


[§  213 


he  was  put  ashore,  manacled  and  finally  discharged  without  full 
pay.  The  Norwegian  consul  intervened,  asserting  jurisdiction, 
and  his  position  was  sustained  and  the  libel  dismissed.42  The 
United  States  district  court  in  Maine,  however,  entertained 
jurisdiction  of  a  libel  against  a  Swedish  vessel  on  the  ground 
that  Sweden  has  no  consular  representative  in  that  district.43 

§  213.  Municipal  ordinances. — The  supreme  court  of  the 
United  States  has  had  before  it  several  cases  in  which  it  was 
called  upon  to  consider  the  extent  of  the  police  power  of  the  states 
in  the  prescription  of  regulations  for  the  promotion  of  the 
health,  peace,  morals,  education  and  good  order  of  the  people. 
It  is  recognized  that  the  state  possesses  supreme  power  over 
police  regulations.44  Thus,  a  municipal  ordinance  which  prohibits 
the  carrying  on  of  public  laundries  and  washhouses  within  cer- 
tain defined  limits  of  a  city,  between  certain  hours  during  the 
night,  is  a  police  regulation.  Such  an  ordinance  is  within  the 
power  of  the  city  to  make,  and  it  cannot  be  supervised  by  a  federal 
tribunal.45  Such  an  ordinance  is  not  void  on  the  ground  that  it 
creates  a  discrimination  between  those  engaged  in  the  laundry 


42  The  Welhaven,   55   Fed.   80.     In 
The  Elwine  Kreplin,  9  Blatchf.  438, 
Fed.   Gas.   No.    4426,   the   question   is 
considered    fully. 

43  The  Amalia,  3  Fed.  652.  . 

44  Commonwealth  v.  Alger,  7  Cush. 
(Mass.)    84;    Taunton  v.   Taylor,  116 
Mass.  254;   Watertown  v.  Mayo,   109 
Mass.      315,      12      Am.      Eep.      694; 
Slaughter-house   Cases,   83   U.   S.    (16 
Wall.)   36,  21  L.  ed.  394;  Lake  View 
v.  Eose  Hill  Cemetery,  70  111.  191,  22 
Am.  Eep.  71;   Daniels  v.  Hilgard,  77 
111.   640;    Boston  Beer  Co.  v.  Massa- 
chusetts, 97  U.  S.  25,  24  L.  ed.  989. 

It  is  competent  for  the  state  to 
forbid  the  carrying  of  concealed 
weapons  (State  v.  Wilforth,  74  Mo. 
528,  41  Am.  Eep.  330)  ;  or  to  require 
professional  graduates  to  possess  cer- 
tain qualifications.  State  v.  Hayward, 
3  Eich.  389;  Eegents  v.  Williams,  9 
Gill  &  J.  365,  31  Am.  Dec.  72. 


A  state  has  the  right,  under  its  police 
power,  to  prohibit  by  a  subsequent 
statute  the  transportation  of  dead 
animals  under  a  charter  which  per- 
mits their  use  as  fertilizers,  as  the 
police  power  of  a  state  is  adequate 
to  give  an  effectual  remedy  against 
nuisances.  Northwestern  Fertilizing 
Co.  v.  Hyde  Park,  97  U.  S.  659,  24 
L.  ed.  1036;  S.  C.,  70  111.  634.  Under 
this  power  regulations  may  be  imposed 
for  the  protection  of  markets  against 
the  sale  of  commodities  unfit  for  com- 
merce. New  Haven  etc.  T.  B.  Co.  v. 
Bunnell,  4  Conn.  59;  State  v.  Fosdick, 
21  La.  Ann.  256. 

45  Barbier  v.  Connolly,  113  U.  S. 
27,  5  Sup.  Ct.  Eep.  357,  28  L.  ed. 
923.  Mr.  Justice  Field,  in  delivering 
the  opinion  of  the  court,  said  that 
neither  the  fourteenth  amendment 
nor  any  other  amendment  "was  de- 
signed to  interfere  with  the  power 


214]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


250 


business  and  those  in  other  classes,  nor  on  the  ground  that  it 
deprives  a  person  of  his  right  to  labor  at  all  times  or  that  it  is 
unreasonable.46 

If,  however,  a  law  be  impartial  in  its  appearance,  yet  if  it  is 
administered  unequally  and  with  partiality,  so  as  to  cause  illegal 
discriminations  between  persons  similarly  situated,  such  admin- 
istration  will  constitute  a  denial  ,of  equal  justice  within  the  pro- 
hibition of  the  Constitution.47 


§  214.  Special  rights  to  American  citizens. — A  treaty  which 
provides  that  the  citizens  of  a  foreign  country  shall  have  free 
access  to  the  tribunals  in  their  affairs  of  litigation  on  the  same 
terms  which  are  granted  by  the  law  and  usages  of  the  country 
to  native  citizens  and  subjects  refers  only  to  ordinary  litigation. 
It  does  not  prevent  the  government  from  subsequently  be- 
stowing special  rights  of  action  on  its  own  citizens  against  itself 


of  the  state,  sometimes  termed  its 
'police  power'  to  prescribe  regula- 
tions to  promote  the  health,  peace, 
morals,  education  and  good  order  of 
the  people,  and  to  legislate  so  as  to 
increase  the  industries  of  the  state, 
develop  its  resources  and  add  to  its 
wealth  and  prosperity.  From  the 
very  necessities  of  society,  legisla- 
tion of  a  special  character,  having 
these  objects  in  view,  must  often  be 
had  in  certain  districts,  such  as  for 
draining  marshes  and  irrigating  arid 
plains.  Special  burdens  are  often 
necessary  for  general  benefits,  for 
supplying  water,  preventing  fires, 
lighting  districts,  cleaning  streets, 
opening  parks,  and  many  other  ob- 
jects. Eegulations  for  these  purposes 
may  press  with  more  or  less  weight 
upon  one  than  upon  another,  but  they 
are  designed,  not  to  impose  unequal 
or  unnecessary  restrictions  upon  any- 
one, but  to  promote,  with  as  little 
inconvenience  as  possible,  the  general 
good.  Though  in  many  respects  nec- 
essarily special  in  their  character,  they 
do  not  furnish  just  ground  of  com- 


plaint, if  they  operate  alike  upon  all 
persons  and  property  under  the  same 
circumstances  and  conditions.  Class 
legislation,  discriminating  against 
some  and  favoring  others,  is  prohib- 
ited; but  legislation  which,  in  carry- 
ing out  a  public  purpose,  is  limited 
in  its  application,  if  within  the  sphere 
of  its  operation  it  affects  all  persons 
similarly  situated,  is  not  within  the 
amendment. ' ' 

46  Soon  King  v.  Crowley,  113  U.  S. 
703,  5   Sup.   Ct.  Eep.   730,  28  L.  ed. 
1145. 

47  Yick  Wo  v.  Hopkins,  118  U.  S. 
356,  6  Sup.  Ct.  Eep.  1064,  30  L.  ed. 
221.     Mr.    Justice    Matthews,    in    de- 
livering the  opinion  of  the  court,  said: 
"When   we   consider   the   nature   and 
the    theory    of    our    institutions     of 
government,  the  principles  upon  which 
they    are    supposed    to    rest,    and    re- 
view   the    history    of    their    develop- 
ment, we  are  constrained  to  conclude 
that  they  do  not  mean  to  leave  room 
for    the    play    and    action    of    purely 
personal  and  arbitrary  power. ' ' 


251  DAMAGES  FOR  DEATH  OP  RELATIVE.  [§    215 

to  the  exclusion  of  aliens.  Hence  such  foreign  subjects  are  not 
entitled  to  maintain  an  action  in  the  court  of  claims  for  Indian 
depredations  under  an  act  of  Congress  giving  this  court  juris- 
diction of  claims  for  property  of  citizens  of  the  United  States 
taken  or  destroyed  by  an  Indian  tribe  or  nation.48 

§  215.  Right  of  nonresident  aliens  to  damages  for  death  of 
relative. — Statutes  have  been  passed  in  many  of  the  states  giv- 
ing a  right  of  action  to  the  husband  or  wife  or  next  of  kin  of  a 
person  who  has  been  killed  by  the  negligence  of  another.  There 
is  a  diversity  of  opinion  upon  the  question  whether  a  nonresident 
alien  may  claim  the  benefits  of  such  statutes.  On  the  one  hand 
it  is  asserted  that  a  construction  of  the  statute  which  would  in- 
clude nonresident  aliens  is  contrary  to  its  spirit  and  policy.49  In 
Colorado  a  similar  construction  was  placed  upon  the  statute  of 
that  state.50  So  in  Wisconsin,  it  was  held  that  such  statutes  had 
no  extraterritorial  force,  bound  only  those  within  the  limits  of 
the  state,  and  hence  nonresident  aliens  could  not  claim  the  bene- 
fit of  the  statute.51  On  the  other  hand,  it  is  declared  that  while  no 
duties  can  be  imposed  by  statute  upon  persons  within  the  limits  of 
another  state,  still,  rights  can  be  offered  to  such  persons,  and  there 
is  nothing  to  prevent  them  from  accepting  the  offer.52  This  is 
on  the  theory  that  statutes  of  this  character  are  enacted  for  the 
benefit  of  the  employee,  and  this  is  the  reason  that  a  cause  of 
action  is  given  to  the  next  of  kin.  The  statute  is  equivalent  to 

48  Valk  v.  United  States,  29  Ct.  of  widows,  children,  and  parents  of  the 
Cl.   62.  deceased,  it  is  a  construction  so  ob- 

49  Deni  v.  Pennsylvania  E.  E.   Co.,  viously    opposed    to    the    spirit    and 
181    Pa.   525,   59   Am.    St.   Eep.    676,  policy  of  the  statute  that  we  cannot 
37    Atl.    558.     "Our    statute,"    said  adopt  it." 

the  court,  "was  not  intended  to  con-  50  Brannigan   v.   Union   G.   M.   Co., 

fer  upon  nonresident  aliens  rights  of  93  Fed.  164. 

action    not    conceded    to    them    or    to  51  McMillan   v.    Spider    Lake    Saw- 

us   by   their   own   country,   or   to   put  mill  etc.   Co.,   115  Wis.   332,   95  Am. 

burdens    on    our    own    citizens    to    be  St.   Eep.   947,   91   N.   W.    979,   60   L. 

discharged   for   their  benefit.     It  has  E.  A.  589. 

no  extraterritorial  force,  and  the  52  Mulhall  v.  Fallon,  176  Mass.  266, 
plaintiff  is  not  within  the  purview  of  79  Am.  St.  Eep.  309,  57  N.  E.  386, 
it.  While  it  is  possible  that  the  54  L.  E.  A.  934.  "In  all  cases/' 
language  of  the  statute  may  admit  said  Mr.  Chief  Justice  Holmes,  "the 
of  a  construction  which  would  in-  statute  has  the  interests  of  the  em- 
elude  nonresident  aliens,  husbands,  ployees  in  mind.  It  is  on  their  ac- 


§    216]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  252 

a  penalty  placed  upon  the  employer  for  his  negligence,  and  its 
primary  object  is  to  secure  the  protection  of  the  life  of  the  em- 
ployee. It  may  be  said  that  the  weight  of  authority  is  in  favor 
of  the  proposition  that  the  statute  is  intended  to  protect  the 
laboring  man  by  enforcing  the  observance  by  the  employer  of 
the  rule  requiring  him  to  furnish  his  servant  with  a  safe  place 
in  which  to  work,  and  there  can  be  no  valid  reason  for  limiting 
the  right  to  recover  damages  to  resident  aliens.53 

§  216.  Prevention  of  intrusion  on  Indian  lands  a  police  regula- 
tion.— As  an  instance  of  a  police  regulation  not  inconsistent  with 
a  treaty,  attention  may  be  called  to  a  statute  of  New  York 
which  authorized  the  summary  removal  of  persons  other  than 
Indians,  settling  or  residing  upon  lands  belonging  to  or  occupied 
by  any  nation  or  tribe  of  Indians.  This  statute,  it  was  con- 
tended among  other  grounds,  was  invalid,  because  in  conflict 
with  a  treaty  made  with  an  Indian  tribe.  The  court  upheld  it, 
however,  as  a  police  regulation  for  the  protection  of  Indians  from 
intrusion  and  for  the  preservation  of  the  peace,  and  remarked: 
"The  power  of  a  state  to  make  such  regulation  to  preserve  the 
peace  of  the  community  is  absolute,  and  has  never  been  surren- 
dered. ' '  54  The  state  can  exercise  its  police  power  over  an  Indian 
reservation.55  An  Indian  may  be  indicted  under  the  criminal  laws 
of  a  state  for  a  murder  committed  out  of  the  reservation.56 

count  that  an  action  is  given  to  the  53  Alfson  v.  Bush  Company,  182  N. 

widow  or  next  of  kin.     Whether  the  Y.  393,  108  Am.  St.  Eep.  815,  75  N. 

action  is  to   be  brought  by  them  or  E.    230;    Kellyville    Coal    Co.    v.    Pe- 

by   the  administrator   the   sum  to   be  trayis,  195  111.  215,  88  Am.  St.  Eep. 

recovered  is  to  be  assessed  with  refer-  191,  63  N.  E.  94;  Eenlund  v.  Commo- 

ence  to  the   degree  of  culpability  of  dore  Min.  Co.,  89  Minn.  47,  99  Am. 

the    employer    or    negligent    person.  St.  Eep.  534,  93  N.  W.  1057;  Eomano 

In  other  words,  it  is  primarily  a  pen-  v.  Capital  City  Brick  Co.,  125  Iowa, 

alty    for    the    protection    of    the    life  591,    106   Am.    St.   Eep.   323,   101   N. 

of  a  workman  in  this  state.     We  can-  W.    437;    Pittsburgh   etc.   Ey.   Co.   v. 

not  think  that  workmen  were  intended  Naylor,    73    Ohio    St.    115,    112    Am. 

to  be  less  protected  if  their  mothers  St.  Eep.  701,  76  N.  E.  505,  3  L.  E. 

happen    to   live   abroad,   or   less    pro-  A.,  N.  S.,  473. 

tected    against    sudden    than    against  M  State    of    New    York    v.    Dibble, 

lingering  death.     In  view  of  the  very  21  How.   (U.  S.)   366,  16  L.  ed.  149. 

large    amount    of    foreign    labor    em-  55  Benson  v.  United  States,  44  Fed. 

ployed   in    this   state,   we   cannot   be-  182. 

lieve  that  so  large  an  exception  was  M  United  States  v.  Sa-coo-da-cot,  1 

silently  left  to  be  read  in."  Abb.     (U.    S.)     383,    Fed.    Cas.    No. 


253  COVENANT  NOT  TO  RENT  PROPERTY  TO  A  CHINAMAN.       [§    217 

§  217.  Covenant  not  to  rent  property  to  a  Chinaman. — A 
covenant  not  to  rent  property  to  a  Chinaman  is  an  infraction  of 
the  treaty  with  China,  guaranteeing  to  its  subjects  in  the  United 
States  all  the  rights,  privileges  and  immunities  accorded  to  cit- 
izens and  subjects  of  the  most  favored  nation.  A  suit  was 
brought  to  enjoin  the  execution  of  a  lease  in  alleged  violation  of 
a  covenant  in  a  deed  of  this  character.  Many  decisions  have  been 
made  by  the  federal  courts,  nullifying  hostile  and  discriminating 
legislation  aimed  at  Chinese  residents,  but  it  was  contended  that 
the  question  as  to  the  legality  of  the  covenant  in  the  deed  did 
not  present  a  case  of  legislation  at  all,  and  hence  was  not  affected 
by  these  decisions.  The  court  held  that  the  covenant  was  in 
conflict  with  the  fourteenth  amendment  providing,  among  other 
things,  that  no  state  shall  "deny  to  any  person  the  equal  protec- 
tion of  the  laws,"  and  declared  that  it  would  be  a  very  narrow 
construction  of  this  constitutional  amendment  and  the  decisions 
based  upon  it  to  hold  that  while  state  and  municipal  legislatures 
cannot  discriminate  against  the  Chinese  in  their  legislation,  a 
citizen  of  the  state  may  lawfully  do  so  by  contract  enforceable 
by  the  courts.  "Such  a  view,"  said  Judge  Ross,  "is,  I  think, 
entirely  inadmissible.  Any  result  inhibited  by  the  Constitution 
can  no  more  be  accomplished  by  contract  of  individual  citizens 
than  by  legislation,  and  the  courts  should  no  more  enforce  the 
one  than  the  other.  This  would  seem  to  be  very  clear. ' '  57 

With  relation  to  the  clause  in  the  treaty,  the  court  referred  to 
the  case  where  it  was  sought  to  enforce  a  contract  made  in  the 
United  States,  after  Texas  had  declared  its  independence,  but 
before  the  acknowledgment  of  independence  by  this  country, 
in  which  the  complainants  agreed  to  furnish,  and  pursuant  to 
which  they  did  furnish,  money  to  a  general  in  the  Texan  army, 
to  enable  him  to  raise  and  equip  troops  to  be  used  against  Mexico. 
Chief  Justice  Taney  in  that  case  said  that  a  citizen  was  "bound 
to  be  at  war  with  the  country  against  which  the  war-making 
power  has  declared  war,  and  equally  bound  to  commit  no  act 
of  hostility  against  a  nation  with  which  the  Government  is  in 

16,212,  1  Dill.  276.     See,  also,  as  to  8T  Uandolfo    v.    Hartman,    49    Fed. 

application  of  the  criminal  laws  of  a       181,  16  L.  E.  A.  277. 

state  to  an  Indian  reservation,  State 

v.   Doxtater,   47   Wis.    287,   2    N.   W. 

443. 


§  218]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.       254 

amity     and     friendship And    when    that    authority    has 

plighted  its  faith  to  another  nation  that  there  shall  be  peace 
and  friendship  between  the  citizens  of  the  two  countries,  every  cit- 
izen of  the  United  States  is  equally  and  personally  pledged. 
The  compact  is  made  by  the  Department  of  the  Government  upon 
which  he  himself  has  agreed  to  confer  the  power.  It  is  his  own 
personal  compact  as  a  portion  of  the  sovereignty  in  whose  be- 
half it  is  made.  And  he  can  do  no  act  nor  enter  into  any  agree- 
ment to  promote  or  encourage  revolt  or  hostilities  against  the 
territories  of  a  country  with  which  our  Government  is  pledged 
by  a  treaty  to  be  at  peace,  without  the  breach  of  his  duty  as  a 
citizen,  and  a  breach  of  the  faith  pledged  to  the  foreign  nation. 
And  if  he  does  so,  he  cannot  claim  the  aid  of  a  court  of  justice 
to  enforce  it. ' ' 58  This  is  a  brief  extract  from  the  opinion  of 
Judge  Taney,  from  which  Judge  Ross  quoted  at  greater  length, 
and  he  stated  his  conclusion  to  be  that  "the  principle  governing 
the  case  is,  in  my  opinion,  equally  applicable  here,  where  it 
is  sought  to  enforce  an  agreement  made  contrary  to  the  public 
policy  of  the  Government,  in  contravention  of  one  of  its  treaties, 
and  in  violation  of  a  principle  embodied  in  its  Constitution.  Such 
a  contract  is  absolutely  void,  and  should  not  be  enforced  in  any 
court — certainly  not  in  a  court  of  equity  of  the  United  States. ' '  59 

§  218.  Aliens  suing  in  court. — Resident  aliens,  in  all  that  re- 
lates to  the  protection  of  their  personal  and  property  rights, 
have  practically  the  same  rights  and  privileges  as  citizens,  and  as 
a  consequence  they  possess  the  legal  remedies  necessary  for  the 
enforcement  of  such  rights.  Alien  friends,  irrespective  of  the 
question  of  their  residence  or  nonresidence,  have,  in  the  absence 
of  disabling  statutes,  the  right  to  hold  and  dispose  of  property 
and  make  contracts,  and  have  the  right  to  resort  to  the  courts 
for  the  protection  of  those  rights.  But  a  suit  between  two  non- 
resident aliens  upon  a  cause  of  action  arising  in  a  foreign  state 
can  be  maintained  only  on  principles  of  comity  and  not  as  a 
matter  of  right.  Actions  or  proceedings  of  an  auxiliary  or  equi- 
table character  in  the  nature  of  attachment  and  execution  are 
governed  by  the  same  rule,  although  residents  of  the  state  may 

58  Kennett    v.    Chambers,    55   U.    S.  59  Gandolfo    v.    Hartman,    49    Fed. 

(14  How.)   49,  14  L.  ed.  321.  181,  16  L.  E.  A.  277. 


255 


TRANSITORY  ACTIONS. 


[§    219 


he  parties  to  the  auxiliary  actions  as  stakeholders  or  claimants 
of  the  property  sought  to  be  reached.60 

A  state  has  jurisdiction  over  persons  found  within  its  limits, 
and  judgment  may  be  rendered  against  such  persons  in  all  cases 
in  which  personal  service  is  had  within  the  state.61 

§  219.  Transitory  Actions.— The  fact  that  persons  are  found 
within  the  limits  of  a  court  does  not  obligate  it  to  assume 
jurisdiction  of  a  transitory  cause  of  action  arising  in  a  foreign 
country,  but  it  may  exercise  such  jurisdiction  on  the  principles  of 
comity.62  If  plaintiff  does  not  intend  to  return  to  the  country 
from  which  he  came,  the  courts  will  entertain  jurisdiction.63 

Courts,  however,  have  refused  to  proceed  where  a  transitory 
cause  of  action  was  based  upon  the  statute  of  another  country, 
owing  to  the  difficulties  that  would  arise  in  its  construction  and 
the  inconvenience  and  danger  of  injustice  attending  such  an 
investigation.64 


60  Disconto  Gesellschaft  v.  Umbreit, 
127  Wis.  651,  115  Am.  St.  Rep.  1063, 
106  N.  W.  821.     The  court  held  that 
the  provisions  of  the  treaty  between 
the  United   States  and   Prussia,   con- 
cluded in  1828,  and  also  of  the  treaty 
of  1799  between  the  same  countries, 
had  no  bearing  on  the  questions  in- 
volved. 

61  Eoberts  v.  Dunsmuir,  75  Cal.  203, 
16  Pac.  782;  Taylor  v.  Sharp,  108  N. 
C.  377,  13  S.  E.  138;    Smith  v.  Gib- 
son, 83  Ala.  284,  3  South.  321;  Stone 
v.  United  States,  167  U.   S.   178,   17 
Sup.    Ct.    Eep.    778,    42    L.    ed.    127; 
Insurance    Co.    of   North   America   v. 
McLimas,  28  Neb.  653,  44  N.  W.  991 ; 
Gibson  v.  Everett,  41  S.  C.  22,  19  S. 
E.  286;   Ex  parte  Perry  etc.   Co.,  43 
S.  C.  176,  20  S.  E.  980. 

62  Dewitt    v.    Buchanan,    54    Barb. 
33;    Gardner    v.    Thomas,    14    Johns. 
134,  7  Am.  Dec.  445;  Mason  v.  Blair- 
eau,  2  Cranch,  240,  2  L.  ed.  266. 

63  Johnson   v.   Dalton,    1    Cow.   543, 
13   Am.    Dec.    564;    Pugh   v.    Gillam, 
1  Cal.  485. 


64  Great  Western  Ey.  Co.  v.  Miller, 
19  Mich.  305;  Mexican  etc.  Ey.  Co. 
v.  Jackson,  89  Tex.  107,  59  Am.  St. 
Eep.  28,  33  S.  W.  857,  31  L.  E.  A.  276. 
"There  could  be  no  reasonable  cer- 
tainty that  the  parties '  rights  would 
be  adjusted  here  as  they  would  be  if 
the  case  were  tried  in  the  courts  of 
that  country,  which  is  their  right,  for 
it  is  well  settled  that  if  one  state 
undertakes  to  enforce  a  law  of  an- 
other state,  the  interpretation  of  that 
law  as  fixed  by  the  courts  of  the 
other  state  is  to  be  followed.  This 
difficulty  of  itself  furnishes  a  suffi- 
cient reason  for  the  courts  of  this 
state  to  decline  to  assume  jurisdic- 
tion of  this  class  of  cases/'  Mexi- 
can etc.  Ey.  Co.  v.  Jackson,  89  Tex. 
107,  59  Am.  St.  Eep.  28,  33  S.  W. 
857,  31  L.  E.  A.  276.  As  to  suits 
upon  a  transitory  cause  of  action 
arising  in  another  state  of  the 
Union,  see  Cofrode  v.  Gartner,  79 
Mich.  332,  44  N.  W.  623,  7  L.  E. 
A.  511.  Where  the  cause  of  action 
does  not  rest  upon  the  common  law, 


§§  220  221]   TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.   256 

§  220.  Eights  of  alien  to  inherit  affected  by  treaty — Com- 
ments.— Perhaps  the  most  common  case  in  which  the  laws  of  a 
state  have  been  altered,  or,  rather,  suspended,  by  treaties  is  that 
involving  the  rights  of  aliens  to  inherit  land.  Treaties  have 
been  concluded  with  various  nations  in  which  the  right  to  in- 
herit lands  has  been  given  to  their  subjects,  and  it  has  been 
uniformly  held  both  by  the  federal  and  state  courts  that  where 
such  treaties  have  been  made,  the  disability  of  the  subjects  of  the 
treaty-making  nation  have,  for  the  time  being,  been  suspended. 
Before  passing  to  a  consideration  of  these  cases,  it  may  be  well 
to  pause  for  a  moment  and  consider  the  rights  of  aliens  .at  common 
law. 

§  221.  Disability  of  aliens. — An  alien  at  common  law  may  ac- 
quire title  by  purchase,  and  his  title  is  good  against  everybody 
but  the  state.  His  title  can  only  be  devested  by  office  found  or 
by  some  act  performed  by  the  state  for  the  purpose  of  acquiring 
possession.65  A  person  who  is  a  bona  fide  resident  of  a  state, 
although  he  is  not  a  citizen  of  the  United  States  nor  has  declared 
his  intention  to  become  one,  may  acquire  by  conveyance  and  hold 
the  title  of  the  locators  of  an  unpatented  mining  claim  obtained 

but  upon  a  state  statute,  see  St.  Louis  Dunlop,  1  Wheat.  179,  4  L.  ed.  65 ; 
etc.  Ry.  Co.  v.  McCormick,  71  Tex.  Robertson  v.  Miller,  1  Brock.  (U.  S.) 
660,  9^  S.  W.  540,  1  L.  R.  A.  804 ;  466,  20  Fed.  Gas.  No.  11,926 ;  So- 
Texas  etc.  Ry.  Co.  v.  Richards,  68  ciety  etc.  v.  Wheeler,  2  Gall  (U.  S.), 
Tex.  375,  4  S.  W.  627;  Morris  v.  Mis-  105,  22  Fed.  Cas.  No.  13,156;  Stokes 
souri  Pac.  Ry.  Co.,  78  Tex.  17,  22  Am.  v.  Dawes,  4  Mason  (U.  S.),  268,  23 
St.  Rep.  17,  14  S.  W.  228,  9  L.  R.  A.  Fed.  Cas.  No.  13,477;  Farmers'  L. 
349.  &  T.  Co.  v.  McKinney,  6  McLean  (U. 
63  Craig  v.  Leslie,  16  U.  S.  (3  S.),  1,  8  Fed.  Cas.  No.  4667;  Dono- 
Wheat.)  563,  4  L.  ed.  460;  Taylor  v.  van  v.  Pitcher,  53  Ala.  411,  25  Am. 
Benham,  46  U.  S.  (5  How.)  233,  12  Rep.  634;  Harley  v.  State,  40  Ala. 
L.  ed.  130;  Craig  v.  Radford,  16  U.  689;  Jenkins  v.  Noel,  3  Stew.  (Ala.) 
S.  (3  Wheat.)  594,  4  L.  ed.  467;  60;  Ferguson  v.  Neville,  61  Cal.  356; 
Doe  v.  Robertson,  24  U.  S.  (11  Fitzgerald  v.  Garvin,  T.  U.  P.  Charlt. 
Wheat.)  332,  6  L.  ed.  488;  Osterman  (Ga.)  281;  Wunderle  v.  Wunderle, 
v.  Baldwin,  6  Wall.  116,  18  L.  ed.  144  111.  40,  33  N.  E.  195,  19  L.  R. 
730;  Governeur  v.  Robertson,  11  A.  84;  Halstead  v.  Lake  County,  56 
Wheat.  332,  6  L.  ed.  488;  Hughes  Ind.  363;  Murray  v.  Fishback,  5  B. 
v.  Edwards,  9  Wheat.  489,  6  L.  ed.  Mon.  (Ky.)  403;  Dudley  v.  Grayson, 
142;  Society  etc.  v.  New  Haven,  8  22  Ky.  (6  T.  B.  Mon.)  259;  El- 
Wheat.  464,  5  L.  ed.  662;  Hepburn  v.  -  mondorff  v.  Carmichael,  3  Litt.  (Ky.) 


257 


DISABILITY    OF    ALIENS. 


[§  221 


under  the  statute  of  the  United  States,  and  his  right  to  convey 
such  title  is  full  and  complete.66  ''That  an  alien  may  take  by 
deed,  or  devise  and  hold  against  anyone  but  the  sovereign,  until 
office  found,  is  a  familiar  principle  of  law,  which  it  requires  no 
citation  of  authorities  to  establish. ' '  67  When  Texas  was  a  foreign 
country,  its  Constitution  forbade  aliens  to  hold  real  estate,  but 
purchasers  were  competent  to  hold  until  office  found,  and  if  the 
sovereign  did  not  exercise  his  prerogative,  no  one  had  a  right 
to  complain.  When  Texas  was  admitted  into  the  Union  the  dis- 
ability of  alienage  was  removed.68 


472,  14  Am.  Dec.  86;  Robasse's  Suc- 
cession, 47  La.  Ann.  1452,  49  Am. 
St.  Rep.  433,  17  South.  867;  Thomp- 
son's Succession,  9  Lia.  Ann.  96;  Mus- 
sey  v.  Pierre,  24  Me.  559;  Guyer  v. 
Smith,  22  Md.  239,  85  Am.  Dec.  650; 
Buchanan  v.  Deshon,  1  Har.  &  G.  280; 
McCreery  v.  Allender,  4  Har.  &  McH. 
409;  McCreery  v.  Wilson,  4  Har.  & 
McH.  412;  Cunningham  v.  Browning, 
1  Bland  (Md.),  308;  Scanlan  v. 
Wright,  13  Pick.  523,  25  Am.  Dec. 
344;  Piper  v.  Richardson,  9  Met. 
(Mass.)  155;  Corn  v.  Andre,  3  Pick. 
224;  Sheaffe  v.  O'Neil,  1  Mass.  256; 
Crane  v.  Reeder,  21  Mich.  24,  4  Am. 
Rep.  430;  Quigley  v.  Birdseye,  11 
Mont.  439,  28  Pac.  741 ;  Wulf  v.  Man- 
uel, 9  Mont.  279,  23  Pac.  723;  Tib- 
bitts  v.  Ah  Tong,  4  Mont.  536,  2  Pac. 
759;  Carlow  v.  Aultman,  28  Neb.  672, 
44  N.  W.  873;  Courtney  v.  Turner, 
12  Nev.  345;  Montgomery  v.  Dorion, 
7  N.  H.  475 ;  O  'Hanlin  v.  Van  Kleeck, 
20  N.  J.  L.  44;  Munro  v.  Merchant, 
28  N.  Y.  9;  Jackson  v.  Adams,  7 
Wend.  367;  Bradstreet  v.  Supervisors 
of  Oneida  County,  13  Wend.  546 ;  Lar- 
reau  v.  Davignon,  5  Abb.  Pr.,  N.  S., 
367;  Wright  v.  Saddler,  20  N.  Y.  320; 
Heeney  v.  Brooklyn  Benev.  Soc.,  33 
Barb.  360;  Overing  v.  Russell,  32 
Barb.  363;  Goodell  v.  Jackson,  20 
Johns.  693,  11  Am.  Dec.  351;  Mat- 
Treaties — 17 


ter  of  Windle,  2  Edw.  Ch.  585; 
Mooers  v.  White,  6  Johns.  Ch.  360; 
Trustees  of  University  v.  Miller,  14 
N.  C.  (3  Dev.)  188;  Blount  v.  Horni- 
blea,  3  N.  C.  (2  Hayw.)  36;  Bayard 
v.  Singleton,  1  N.  C.  5;  McClenaghan 
v.  McClenaghan,  1  Strob.  Eq.  (S.  C.) 
295,  47  Am.  Dec.  532;  Groves  v.  Gor- 
don, 3  Brev.  (S.  C.)  245;  Vaux  v. 
Nesbit,  1  McCord  Eq.  352;  Jenney  v. 
Laurens,  1  Speers,  356;  Williams  v. 
Wilson,  Mart.  &  Y.  (Tenn.)  248;  Bar- 
rett v.  Kelly,  31  Tex.  476;  Clay  v. 
Clay,  26  Tex.  24;  Williams  v.  Ben- 
nett, 1  Tex.  Civ.  App.  498,  20  S.  W. 
856;  State  v.  Boston  etc.  R.  Co.,  25 
Vt.  433;  Sands  v.  Lynham,  27  Gratt. 
(Va.)  291,  21  Am.  Rep.  348;  Fergu- 
son v.  Franklins,  6  Munf.  (Va.)  305; 
Marshall  v.  Conrad,  5  Cal.  364;  Ore- 
gon Mortg.  Co.  v.  Carstens,  16  Wash. 
165,  47  Pac.  421,  35  L.  R.  A.  841; 
Irwin  v.  McBride,  23  U.  C.  Q.  B. 
(Canada)  570;  Doe  v.  Cleveland,  6 
U.  C.  Q.  B.,  O.  S.,  117;  Murray  v. 
Heron,  7  Grant  Ch.  (U.  C.)  177; 
Doe  v.  Dickson,  2  U.  C.  Jur.  (Canada) 
326;  Burk  v.  Brown,  2  Atk.  397; 
Theobolds  v.  Duffoy,  9  Mod.  104. 

66  Ferguson  v.  Neville,  61  Cal.  356. 

CT  Cross  v.  Del  Valle,  1  Wall.  (68 
U.  S.)  8,  17  L.  ed.  515. 

68  Osterman  v.  Baldwin,  6  Wall.  (TJ. 
S.)  116,  18  L.  ed.  730. 


§§  222,  2231   TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.   258 

§  222.  Title  in  aliens  when  treaty  made. — As  at  common  law, 
aliens  are  permitted  to  acquire  title  by  act  of  the  parties  and  to 
retain  the  title  until  the  sovereign  power  forfeits  it  either  by 
office  found  or  by  some  act  that,  in  legal  effect,  is  its  equivalent,69 
the  titles  of  British  subjects  to  lands  in  the  United  States,  which 
would  have  been  liable  to  forfeiture,  by  escheat,  for  the  defect 
of  alienage  were  completely  protected  by  the  sixth  article  of 
the  treaty  of  peace  between  the  United  States  and  Great  Britain 
of  1783,  and  by  the  ninth  article  of  the  treaty  of  1794.  The  title 
of  the  parties  under  these  treaties  possesses  the  same  validity  as 
if  they  were  citizens.  It  is  sufficient  for  them  to  show  that  title 
was  in  them  when  the  treaty  was  made,  and  it  is  not  necessary 
that  they  should  show  an  actual  possession  or  seisin.70 

An  alien  grantee  of  land  had,  under  the  Mexican  law,  the  right 
to  hold  and  possess  it  as  his  own  property  until  he  was  deprived 
of  it  by  the  action  of  the  sovereign  authority  or  by  the  inquisition 
of  denouncement.71 

§  223.  Taking  by  devise. — Taking  by  devise  is  considred 
as  a  taking  by  purchase.72  The  New  York  statute  provided  that 
"If  any  alien  resident  of  this  state,  or  any  naturalized  or  native 
citizen  of  the  United  States,  who  has  purchased  and  taken,  or 
who  hereafter  shall  purchase  and  take,  a  conveyance  of  real  es- 

69  Manuel  v.  Wulff,  152  U.  S.  505,  Kauffman,    82    Tex.    65,    17    S.    W. 

14  Sup.  Ct.  Eep.  651,  38  L.  ed.  532;  513. 

Eandall  v.  Jaques,  20  Fed.  Gas.  No.  70  Orr   v.    Hodgson,   4   Wheat.   453, 

11,553;   Phillips  v.  Moore,  100  U.  S.  4  L-  ed-  613- 

208,  25  L.  ed.  603;   Orr  v.  Hodgson,  "  De    Merle    v.    Mathews,    26    Cal. 

4  Wheat.   (U.  S.)   453,  4  L.  ed.  613;  455' 

Hammekin  v.   Clayton,   2  Woods    (U.  "  Mooers    v'    White>    6    Johns-    Ch- 

S.),  336,  11  Fed.  Cas.  No.  5996;  Air-  <N'  Y">    360'    Jones  v'   Minogue,   29 

'           .                                  '      0-  Ark.  637;  Fox  v.  Southack,  12  Mass, 
hart    v.    Massieu,    98    U.    S.    491,    25 

'  143;  Marshall  v.  Conrad,  5  Call  (Va.), 

L.   ed.   213;    Smith  v.   Zaner,   4  Ala.  '   ^T 

oo   ^  i  3645   Vaux  v-  Nesbit,  1  McCord  Eq. 

99;    Eacouillat  v.   Sansevam,   32   Cal.  ,a     ~  N    0_0      .M  .   „ 

(S.    C.)    352;    Fairfax   v.    Hunter,    7 

376;    Bamires   v.   Kent,    2    Cal.    558;  Cranch    (u>   g  )?   ^   0  L    ed    ^. 

People  v.  Folsom,  5  Cal.  373;  Norris  gtamm   y    Bostwick,    122    N.    Y.    48, 

v.    Hoyt,    18    Cal.    217;    Johnson    v.  25  N   E   233)  9  L   E  A   5Q7.  Doehrel 

Elkins,    1    App.    Cas.     (D.    C.)    430;  v>  Hillmer,  102  Iowa,  169,  71  N.  W. 

^uigley  v.  Birdseye,  11  Mont.  439,  28  204;  Burrow  v.  Burrow,  98  Iowa,  400, 

Pac.     741;     Carlou     v.  Aultman,     28  67   N.   W.   287;    Bennett  v.   Hibbert, 

Neb.    672,    44    N.    W.    873;    Gray   v.  88  Iowa,  154,  55  N.  W.  93. 


259  CONSTITUTIONAL  LEGISLATION.  [§§    224,    225 

tate  within  this  state,  has  died,  or  shall  hereafter  die,  leaving 
persons  who,  according  to  the  statutes  of  this  state,  would  answer 
the  description  of  heirs  of  such  deceased  person,"  such  persons, 
whether  they  are  citizens  or  aliens,  are  capable  of  taking  and 
holding  as  heirs  of  such  deceased  person,  as  if  they  were  citizens, 
of  the  United  States,  the  real  estate  owned  and  held  by  such  de- 
ceased alien  or  citizen  at  the  time  of  his  death.  It  was  held  that 
the  word  "purchase"  in  this  statute  included  an  acquisition  by 
devise.73 

Generally,  under  statutes  of  a  similar  nature,  it  may  be  said  that 
acquisition  by  devise  is  included  under  the  term  *  *  purchase. ' ' 74 
The  method  provided  by  statute  must  be  followed  to  secure  the 
escheat  of  a  decedent's  property  for  the  nonexistence  of  heirs,  and 
the  question  cannot  be  determined  in  a  proceeding  brought  by 
an  heir  to  restrain  the  escheator.75  Hence,  it  is  not  proper  for 
equity  to  enjoin  proceedings  to  have  an  escheat  declared,  where, 
if  escheat  should  be  found,  every  question  that  might  arise  could 
be  decided  on  a  traverse,76  and  unless  an  amicus  curiae  has  an 
interest  or  represents  someone  who  has,  he  cannot  move  to  quash 
an  inquisition.77 

§  224.  Foreign  corporation  purchasing  stock  of  local  corpora- 
tion.— A  foreign  corporation  cannot,  as  a  device  to  enable  it  to 
hold  real  estate,  purchase  the  capital  stock  of  a  local  corporation. 
Such  an  act  is  a  violation  of  the  law  prohibiting  corporations  from 
acquiring  any  real  estate  within  the  state  unless  authorized  by 
law,  and  lands  so  held  are  subject  to  escheat.78 

§  225.  Constitutional  legislation. — An  act  relinquishing  the 
land  to  the  occupants,  passed  while  proceedings  by  the  escheator 
were  pending,  is  constitutional,79  and  likewise  a  statute  passed  in 
a  similar  manner,  providing  that  property  of  an  illegitimate 
should  go  to  his  legitimate  half-brothers,  is  valid.80 

73  Stamm   v.   Bostwick,    122   N.   Y.  76  Olmstead  's  Appeal,  86  Pa.  284. 
48,  25  N.  E.  233,  9  L.  E.  A.  597.               7T  Dunlop  v.  Commonwealth,  2  Call 

74  Burrow  v.  Burrow,  98  Iowa,  400,       (Va.;,    284. 

67   N.   W.    287;    Bennett   v.   Hibbert,  78  Commonwealth   v.   New   York   L. 

88  Iowa,  154,  55  N.  W.  93;   Doehrel  E.  &  W.  E.  Co.,  114  Pa.  340,  7  Atl. 

v.  Hillmer,  102  Iowa,  169,  71  N.  W.  756. 

204.  79  State  v.  Tilghman,  14  Iowa,  474. 

75  Muir  v.  Thomson,  28   S.  C.  499,  80  Gresham  v.  Eickenbacher,  28  Ga. 
6    S.    E.    309.  227. 


§    226]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


260 


If  the  legislature  is  given  power  by  the  Constitution  to  provide 
methods  by  which  forfeiture  may  be  enforced,  there  can  be  no 
proceedings  until  the  legislature  acts.81  If  aliens  are  prohibited 
from  acquiring  title  to  real  estate,  and  a  conveyance  is  made  upon 
a  secret  trust  for  the  benefit  of  the  foreigner,  the  maker  not  know- 
ing of  the  trust,  while  the  trust  is  void,  the  deed  is  not.82 

§  226.  Alien  acquiring  title  by  descent. — At  common  law  an 
alien  cannot  acquire  title  to  land  by  descent  or  by  mere  operation 
of  law.83  The  treaties  of  1783  and  1794  between  the  United  States 


81  Wiederanders    v.    State,    64    Tex. 
133. 

82  Hammekin  v.  Clayton,  2  Woods, 
336,    Fed.    Gas.    No.    5996. 

83  Craig  v.  Leslie,  3  Wheat.  (U.  S.) 
563,    4    L.     ed.    460;     McKinney    v. 
Saviego,    18    How.    (U.    S.)    235,    15 
L.    ed.    365;    Fairfax    v.    Hunter,    7 
Cranch    (U.    S.),   603,   3   L.   ed.   453; 
Taylor   v.    Benham,    5   How.    (U.    S.) 
233,  12  L.  ed.  130;  Middleton  v.  Mc- 
Grew,    23    How.    (II.    S.)     45,    16   L. 
ed.  403;   McLarn  v.  Wallace,  10  Pet. 
(U.   S.)    625,   9  L.   ed.   559;    Dawson 
v.  Godfrey,  4  Cranch   (U.  S.),  321,  2 
L.    ed.    634;    Blight    v.    Rochester,    7 
Wheat.    (U.   S.)    535,   5   L.   ed.   516; 
Ware  v.  Wisner,  50  Fed.  319;  Contee 
v.   Godfrey,   1   Cranch  C.   C.    (U.   S.) 
479,  6  Fed.  Gas.  No.  3140;   Smith  v. 
Zaner,  4  Ala.  99 ;  Etheridge  v.  Malem- 
pre,  18  Ala.  565;  Donovan  v.  Pitcher, 
53  Ala.  411,  25  Am.  Eep.  634;  Siems- 
sen  v.  Bofer,  6  Cal.  250;   McNeil  v. 
Polk,  57  Cal.  323;  Crosgrove  v.  Cros- 
grove,  69  Conn.  416,  38  Atl.  219;  De 
Graff   v.  Wendt,   164  111.  485,  45   N. 
E.    1075;    Eldon   v.    Doe,    6    Blatchf. 
(Ind.)     341;    Eheim    v.    Bobbins,    20 
Iowa,  45;  Brown  v.  Pearson,  41  Iowa, 
481;  Meier  v.  Lee,  106  Iowa,  303,  76 
N.  W.  712;  Hunt  v.  Warnicke,  Hard. 
(Ky.)    61;    Trimbles    v.    Harrison,    1 
B.    Mon.    (Ky.)    140;    Elmondorff   v. 
Carmichael,  3  Litt.  (Ky.)  472,  14  Am. 


Dec.  86;  White  v.  White,  2  Met.  (Ky.) 
185;  Fry  v.  Smith,  2  Dana  (Ky.), 
38;  Buchanan  v.  Deshon,  1  Har.  &  G. 
(Md.)  280;  Sheaffe  v.  O'Neil,  1 
Mass.  256;  Scanlan  v.  Wright,  13 
Pick.  523,  25  Am.  Dec.  344;  Wacker 
v.  Wacker,  26  Mo.  426;  Harney  v. 
Donohoe,  97  Mo.  141,  10  S.  W.  191; 
Utassy  v.  Giedinghagen,  132  Mo.  53, 
33  S.  W.  444 :  Bradstreet  v.  Oneida 
County,  13  Wejd.  (N.  Y.)  546;  Lynch 
v.  Clarke,  1  Sand.  Ch.  (N.  Y.)  583; 
Jackson  v.  Limn,  3  Johns.  Gas.  (N. 
Y.)  109;  Leary  v.  Leary,  50  How. 
Pr.  (N.  Y.)  122;  Renner  v.  Miiller,  57 
How.  Pr.  (N.  Y.)  229;  Bradley  v. 
Dwight,  62  How.  Pr.  (N.  Y.)  300; 
Kennedy  v.  Wood,  20  Wend.  (N.  Y.) 
230;  Mooers  v.  White,  6  Johns.  Ch. 
(N.  Y.)  360;  Larreau  v.  Davignon, 
5  Abb.  Pr.,  N.  S.  (N.  Y.),  367; 
Heeney  v.  Brooklyn  Benev.  Society, 
33  Barb.  (N.  Y.)  360;  Ettenheimer 
v.  Heffernan,  66  Barb.  (N.  Y.)  374; 
Montgomery  v.  Dorion,  7  N.  H.  475; 
Kay  v.  Watson,  17  Ohio,  27;  Jack- 
son v.  Burns,  3  Binn.  (Pa.)  75;  En- 
nas  v.  Franklin,  2  Brev.  (S.  C.)  398; 
Halyburton  v.  Kershaw,  3  Desaus.  (S. 
C.)  105;  Davis  v.  Hall,  1  Nott  & 
McC.  (S.  C.)  292;  McClenaghan  v. 
McClenaghan,  1  Strob.  Eq.  (S.  C.) 
295,  47  Am.  Dec.  532;  Sebben  v- 
Trezevant,  3  Desaus.  (S.  C.)  213; 
Jenney  v.  Laurens,  1  Speers  (S.  C.), 


261 


TAKING  BY  DOWER  OR  CURTESY. 


[§  227 


and  Great  Britain  were  held  to  provide  only  for  titles  existing 
at  the  time  of  the  making  of  the  treaties  and  not  to  titles  subse- 
quently acquired,  and  hence  British  subjects  born  before  the 
Revolution  were  held  to  be  equally  incapable  with  those  born 
after  of  inheriting  or  transmitting  the  inheritance  of  lands.84 
Aliens,  however,  could  inherit  real  estate  under  the  laws  of  Mex- 
ico, which  were  in  force  in  California.85  But  for  the  purpose  of 
preventing  an  escheat,  and  with  the  object  of  effectuating  the 
wishes  of  a  testator,  a  court  of  equity  will,  if  necessary,  consider 
land  as  money,  in  a  case  where  a  testator,  who  is  a  trustee,  has  di- 
rected the  land  to  be  sold,  and  will  direct  that  the  proceeds  be 
given  to  the  cestui  que  trust.8Q 

§  227.  Taking  by  dower  or  curtesy. — The  disability  of  the 
alien  to  inherit  extends  to  taking  by  dower  or  curtesy  ;87  but  this 
rule  has  frequently  been  altered  by  statutes  removing  the  dis- 
ability of  alienage.88  Such  statutes,  however,  operate  only  in 
cases  arising  in  the  future,  and  are  not  retroactive.89 


356;  Descottes  v.  Talvande,  2  McMull. 
(S.  C.)  300;  Vaux  v.  Nesbit,  1  Mc- 
Cord  Eq.  (S.  C.)  352;  Groves  v.  Gor- 
don, 3  Brev.  (S.  C.)  245;  Trezevant 
v.  Osborn,  3  Brev.  (S.  C.)  29;  Baker 
v.  Shy,  9  Heisk.  (Tenn.)  85;  Cryer 
v.  Andrews,  11  Tex.  170;  McGahan  v. 
Baylor,  32  Tex.  789;  Lacoste  v.  Odam, 
26  Tex.  458;  Yates  v.  lams,  10 
Tex.  168;  Pettus  v.  Dawson,  82  Tex. 
18,  17  S.  W.  714;  Williams  v.  Ben- 
nett, 1  Tex.  Civ.  App.  498,  20  S.  W. 
856;  Eead  v.  Bead,  5  Call  (Va.),  160; 
Barzizas  v.  Hopkins,  2  Eand.  (Va.) 
276;  Doe  v.  Clarke,  1  U.  C.  Q.  B.  37; 
Doe  v.  Jones,  4  Term  Rep.  300;  Doe 
v.  Acklam,  2  Barn.  &  C.  779. 

84  Bright 's    Lessee    v.    Rochester,    7 
Wheat.  (U.  S.)   535,  5  L.  ed.  516. 

85  McNeil    v.    Polk,    57    Cal.    323; 
Ramires  v.  Kent,  2  Cal.  560;   People 
v.   Folsom,   5   Cal.   373;    De   Merle   v. 
Mathews,   26   Cal.   477;    Racouillat  v. 
Sansevain,  32  Cal.  376. 

86  Taylor   v.   Benham,   5   How.    (U. 
S.)   233,  12  L.  ed.  130. 

87  Foss  v.   Crisp,   20  Pick.    (Mass.) 
121;      Sistare     v.     Sistare,     2     Root 


(Conn.),  468;  Greer  v.  Sankston,  26 
How.  Pr.  (N.  Y.)  471;  Sutliff  v. 
.borgey,  1  Cow.  (N.  Y.)  89;  Currin 
v.  Finn,  3  Denio  (N.  Y.),  229;  Con- 
nolly v.  Smith,  21  Wend.  (N.  Y.) 
59;  White  v.  White,  2  Met.  (Ky.) 
185;  Moore  v.  Tisdale,  5  B.  Mon. 
(Ky.)  352;  Potter  v.  Titcomb,  22 
Me.  300;  Mussey  v.  Pierre,  24  Me. 
559;  Buchanan  v.  Deshon,  1  Har.  & 
G.  (Md.)  280;  Copeland  v.  Sauls,  46 
N.  C.  70;  Paul  v.  Ward,  15  N.  C. 
247;  Ondis  v.  Banta,  7  Kulp  (Pa.), 
390;  Reese  v.  Waters,  4  Watts  &  S. 
(Pa.)  145;  Quinn  v.  Ladd,  37  Or. 
261,  59  Pac.  457;  Bennett  v.  Harms, 
51  Wis.  251,  81  N.  W.  222. 

88  Mick  v.  Mick,  10  Wend.   (N.  Y.) 
379;    Burton  v.  Burton,   1  Abb.  Dec. 
(N.   Y.)    271;    Burton  v.   Burton,   26 
How.    Pr.     (N.    Y.)     474;     Greer    v. 
Sankston,  26  How.  Pr.   (N.  Y.)   471; 
Priest   v.    Cummings,    16   Wend.    (N. 
Y.)    617;    Stokes  v.   O'Fallon,   2   Mo. 
32;      Emmett    v.     Emmett,     14    Lea 
(Tenn.),   369. 

89  Priest    v.    Cummings,    20    Wend. 
(N.    Y.)    338. 


§    227]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES.  262 

The  Constitution  of  California  provides  that  "all  estates  of 
deceased  persons  who  may  have  died  without  leaving  a  will  or 
heir  ....  shall  be  and  remain  a  perpetual  fund, "  to  be  inviolably 
appropriated  to  the  support  of  common  schools  throughout  the 
state.90  The  supreme  court  of  that  state,  however,  held  that 
the  Constitution  did  not  prevent  the  legislature  from  giving  to 
nonresident  foreigners  the  same  rights  relative  to  the  acquisition, 
transmission  and  inheritance  of  property  as  were  guaranteed  by 
the  Constitution  to  resident  foreigners.  This  provision  of  the 
Constitution  was  held  not  to  limit  the  power  of  the  legislature  to 
declare  that  aliens  may  be  heirs.91 

Under  the  statute  of  Virginia,  children  who  are  born  in  that 
state  have  the  capacity  of  inheriting  through  living  alien  an- 
cestors, and,  consequently,  children  born  of  alien  parents  who  re- 
side in  that  state  are  entitled  to  inherit  real  estate,  and  likewise 
children  born  in  another  state  may  inherit  in  Virginia.92  Un- 
less, however,  there  is  some  prohibition,  the  general  rule  is  that 
an  alien  friend  may  enforce  his  rights  to  the  same  extent  as  a  cit- 
izen, and  may  maintain  actions  of  ejectment  or  partition.93  The 
objection  that  an  alien  is  incapacitated  from  maintaining  an  ac- 
tion should  be  raised  by  plea  in  abatement.94 

90  Cal.    Const.,   art.    IX,    sec.    4.  Scanlan  v.  Wright,   13  Pick.  523,  25 

91  State  v.   Smith,   70  Cal.   153,   12  Am.  Dec.  344;   Cryer  v.  Andrews,  11 
Pac.   121.  Tex.    170;    Schultze   v.    Schultze,   144 

92  Hannon  v.  Hounihan,  85  Va.  429,  111.  290,  36  Am.  St.  Kep.  432,  33  N. 
12   S.   E.   157.  E.   201,  19  L.  R.  A.   90;    Scharpf  v. 

93  Bonaparte  v.  Camden  etc.  R.  Co.,  Schmidt,  172  111.  255,  50  N.  E.  182. 
Baldw.   (U.  S.)   205,  3  Fed.  Gas.  No.  A    suit    may    be    maintained    by    an 
1617;    Fisher    v.    Harnden,    1    Paine  alien  mortgagee  to  foreclose  his  mort- 
(TJ.   S.),  55,  9  Fed.   Gas.  No.   4819;  gage.     Hughes  v.  Edwards,  9  Wheat. 
Shanks  v.  Dupont,  3  Pet.  (U.  S.)  242,  (U.  S.)  489,  6  L.  ed.  142;  Silver  Lake 
7  L.  ed.  666;  Hauenstein  v.  Lynham,  Bank  v.  North,  4  Johns.  Ch.  (N.  Y.) 
100  U.  S.  483,  25  L.  ed.  628;   Jones  370;  Richmond  v.  Milne,  17  La.  312, 
v.  McMasters,  20  How.  (U.  S.)  8,  15  36  Am.  Dec.  613.     But  see  Siemssen 
L.  ed.   805;   Den  v.  Brown,   7  N.   J.  v.  Bofer,  6  Cal.  250;  Norris  v.  Hoyt, 
L.  305;  Peck  v.  Young,  26  Wend.  (N.  18   Cal.   217;   Barges  v.  Hogg,   2  N. 
Y.)    613;    Young  v.   Peck,   21   Wend.  C.    485;    Barrett    v.    Kelly,    31    Tex. 
(N.  Y.)  389;  Utassy  v.  Giedinghagen,  476;  Hardy  v.  De  Leon,  5  Tex.  211; 
132   Mo.   53,   33   S.   W.   444;    Farley  Guyer  v.  Smith,  22  Md.  239,  85  Am. 
v.  Shippen,  Wythe  (Va.),  254;  White  Dec.  650. 

v.   Sabariego,   23   Tex.   243;    Ortiz  v.  M  Rateau    v.    Bernard,    3    Blatchf. 

De  Benavides,  61  Tex.  60;   Nolan  v.       (U.  S.)  244,  20  Fed.  Gas.  No.  11,579; 
Command,  11  N.  Y.  Civ.  Proc.   295;       The   Bee,    1    Ware    (U.    S.),    336,    3 


263 


ALIEN  HAS  NO  INHERITABLE  BLOOD.  [§§    228,    229 


§  228.  Alien  has  no  inheritable  blood. — Not  only  is  an  alien 
incapable  at  common  law  of  inheriting  real  estate,  but  he  is 
also  incapable  of  transmitting  an  interest  to  a  citizen,  not  under 
the  disability  of  alienage,  as  the  alien  possesses  no  inheritable 
blood.  An  incapacity  to  transmit  land  to  heirs  is  one  of  the 
disabilities  of  alienage.95  On  this  principle  neither  dower  nor 
curtesy  in  the  real  estate  can  be  allowed  to  the  wife  or  husband  of 
an  alien,  as  the  alien  has  no  power  to  transmit  real  estate  by 
descent.96 


§  229.  Right  of  alien  to  take  personal  property. — The  dis- 
ability that  attaches  to  an  alien  and  that  at  common  law  in- 
capacitates him  from  inheriting  real  estate  does  not  exist  where 
personal  property  is  concerned.  He  has  the  same  power  to  take 
and  hold  personal  property  as  a  citizen.97  Nonresident  stock- 
holders of  a  corporation  acquire  and  hold  their  shares  of  stock 
with  all  the  rights  and  privileges  which  pertain  to  them  in  the 
hands  of  citizens.  If  no  other  qualifications  for  directors  are 


Fed.  Cas.  No.  1219;  McNair  v.  Toler, 
21  Minn.  175;  Lee  v.  Salinas,  15  Tex. 
495;  Shivers  v.  Wilson,  5  Har.  &  J. 
(Md.)  130,  9  Am.  Dec.  497;  Martin 
v.  Woods,  9  Mass.  377;  Burnside  v. 
Matthews,  54  N.  Y.  78;  Educational 
Society  v.  Varney,  54  N.  H.  376. 

95  Blight  v.  Rochester,  7  Wheat. 
(U.  S.)  535,  5  L.  ed.  516;  Eubeck 
v.  Gardner,  7  Watts  (Pa),  455; 
Jones  v.  Minogue,  29  Ark.  637;  Doe 
v.  Lazenby,  Smith  (Ind.),  203,  1 
Ind.  234;  Smith  v.  Zaner,  4  Ala.  99; 
De  Graff  v.  Went.  164  111.  485,  45 
N.  E.  1075;  Purczell  v.  Smidt,  21 
Iowa,  540;  Richmond  v.  Milne,  17 
La.  312,  36  Am.  Dec.  613;  Stevenson 
v.  Dunlap,  7  T.  B.  Mon.  (Ky.)  134; 
Slater  v.  Nason,  15  Pick.  (Mass.) 
345;  Farrar  v.  Dean,  24  Mo.  16; 
Hinkle  v.  Shadden,  2  Swan  (Tenn.), 
46;  De  Wolf  v.  Middleton,  18  R.  I. 
814,  26  Atl.  44,  31  Atl.  271,  31  L. 
R.  A.  146;  Sands  v.  Lynham,  27 
Gratt.  (Va.)  291,  21  Am.  Rep.  348. 


96  Coxe  v.  Gulick,  10  N.  J.  L.  328; 
Mobile  Cong.  Church  v.  Morris,  8  Ala. 
182. 

97  Meier  v.  Lee,  106  Iowa,  303,  76 
N.   W.    712;    Greenheld   v.    Morrison, 
21    Iowa,    538;    E  vans'    Appeal,    51 
Conn.  435;  Crosgrove  v.  Crosgrove,  69 
Conn.    416,    38    Atl.    219;    Kerr    v. 
White,   52   Ga.   362;    Ludlow  v.   Van 
Ness,    8    Bosw.    (N.    Y.)    178;    Rich- 
mond v.  Milne,   17  La.   312,  36  Am. 
Dec.  613;  Greenia  v.  Greenia,  14  Mo. 
526;  Harney  v.  Donohoe,  97  Mo.  141, 
10  S.  W.  191;   Bradwell  v.  Weeks,  1 
Johns.    Ch.    (N.    Y.)    206;    Beck    v. 
McGillis,  9  Barb.  (N.  Y.)  35;  Meak- 
ings    v.    Cromwell,    5     N.    Y.     136; 
Corrie's   Case,   2   Bland    (Md.),  488; 
Megrath  v.  Robertson,  1  Desaus.    (S. 
C.)    445;   Polk  v.  Ralston,  2  Humph. 
(Tenn.)    537;    Commonwealth  v.  Det- 
willer,  131  Pa.  614,  18  Atl.  990,  7  L. 
R.  A.  357. 


§    230]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  264 

required  than  ownership  of  stock,  such  aliens  may  become  di- 
rectors.98 

§  230.  Treaties  removing  disability  of  aliens  to  inherit. — All 
laws  of  a  state  contrary  to  the  provisions  of  a  treaty  are  void. 
A  treaty  may  remove  the  disability  of  an  alien  to  inherit,  and  it 
is  undoubted  that  treaties  conferring  upon  aliens  the  right 
to  inherit  are  within  the  scope  of  the  treaty-making  power  of 
the  United  States.  "That  the  treaty  power  of  the  United 
States,"  said  Mr.  Justice  Field,  "extends  to  all  proper  subjects 
of  negotiation  between  our  government  and  the  governments  of 
other  nations,  is  clear.  It  is  also  clear  that  the  protection  which 
should  be  afforded  to  the  citizens  of  one  country  owning  prop- 
erty in  another,  and  the  manner  in  which  that  property  may  be 
transferred,  devised  or  inherited,  are  fitting  subjects  for  such 
negotiation  and  of  regulation  by  mutual  stipulations  between 
the  two  countries.  As  commercial  intercourse  increases  between 
different  countries  the  residence  of  citizens  of  one  country  within 
the  territory  of  the  other  naturally  follows,  and  the  removal  of 
their  disability  from  alienage  to  hold,  transfer  and  inherit  prop- 
erty in  such  cases  tends  to  promote  amicable  relations.  Such  re- 
moval has  been  within  the  present  century  the  frequent  subject 
of  treaty  arrangement.  The  treaty  power,  as  expressed  in  the 
Constitution,  is  in  terms  unlimited  except  by  those  restraints 
which  are  found  in  that  instrument  against  the  action  of  the 
government  or  of  its  departments,  and  those  arising  from  the 
nature  of  the  government  itself  and  of  that  of  the  States.  It 
would  not  be  contended  that  it  extends  so  far  as  to  authorize 
what  the  Constitution  forbids,  or  a  change  in  the  character  of 
the  government  or  in  that  of  one  of  the  States,  or  a  cession  of 
any  portion  of  the  territory  of  the  latter,  without  its  consent. 
But  with  these  exceptions,  it  is  not  perceived  that  there  is  any 
limit  to  the  questions  which  can  be  adjusted  touching  any  matter 
which  is  properly  the  subject  of  negotiation  with  a  foreign  coun- 
try."99 

The  court  said  that  the  article  of  the  treaty  in  question  in  the 
case  just  cited  was  not  happily  drawn,  but  that  by  its  evident  mean- 

98  Commonwealth  v.   Detwiller,   131       258,  10  Sup.  Ct.  Rep.  295,  33  L.  ed. 
Pa.  614,  18  Atl.  990,  7  L.  E.  A.  357.       642.     See,  also,  Bahuaud  v.  Bize,  105 
M  De  Geofroy  v.  Eiggs,  133  U.  S.       Fed.  485. 


265  TREATY  ADMITTING  OF  TWO  CONSTRUCTIONS.  [§    231 

ing  the  disability  of  alienage  was  removed,  and  that  citizens  of 
France  could  take  land  in  the  District  of  Columbia  by  descent  from 
citizens  of  the  United  States,  notwithstanding  the  common  law 
which  prevailed  in  the  District  excluded  aliens  from  inheriting 
lands  from  a  citizen.100 

§  231.  Treaty  admitting  of  two  constructions. — Where  two 
constructions  may  be  placed  upon  a  treaty,  one  restrictive  as  to 
the  rights  that  may  be  claimed  under  it,  and  the  other  liberal, 
the  liberal  construction  will  be  preferred.  An  alien  died  in  Vir- 
ginia, intestate  and  without  children,  owning  at  the  time  of  his 
death  real  property  in  that  state.  The  escheator  prosecuted  an 
inquisition  for  the  forfeiture  of  the  estate,  recovered  judgment, 
and  was  about  to  sell,  when  certain  heirs,  citizens  of  Switzerland, 
filed  a  petition  in  pursuance  of  the  laws  of  Virginia,  alleging 
that  they  were  the  heirs  at  law  of  the  deceased,  and  praying 
that  the  proceeds  of  the  sale  of  the  property  should  be  turned 
over  to  them,  but  the  state  court  was  of  the  opinion  that  con- 
ceding the  fact  of  their  heirship,  they  had  no  valid  claim. 

The  treaty  between  the  United  States  and  the  Swiss  Confedera- 
tion of  November  25,  1850,  provided,  in  article  V,  that  as  to 
personal  property,  the  fullest  power  to  dispose  of  the  same 
should  be  given,  and  as  to  real  estate  provided:  "The  foregoing 
provisions  shall  be  applicable  to  real  estate  situate  within  the 
States  of  the  American  Union,  or  within  the  cantons  of  the  Swiss 
Confederation,  in  which  foreigners  shall  be  entitled  to  hold  or 
inherit  real  estate.  But  in  case  real  estate  situated  within  the 
territories  of  one  of  the  contracting  parties  should  fall  to  a 
citizen  of  the  other  party,  who,  on  account  of  his  being  an  alien, 
could  not  be  permitted  to  hold  such  property  in  the  State  or  in 
the  canton  in  which  it  may  be  situated,  there  shall  be  accorded 

100  De  Geofroy  v.  Eiggs,  133  U.  S.  remain  in  force,  Frenchmen  shall  en- 

258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed.  joy  the  right  of  possessing  personal 

642.     The  seventh  article  of  the  con-  and  real  property  by  the  same  title 

vention   between   the   United   States  and  in  the  same  manner  as  the  citi- 

and  France   concluded  February  23,  zens    of    the    United    States.     They 

1853,  before  the  court  in  that  case  shall  be  free  to  dispose  of  it  as  they 

for   construction,   provided:  "In   all  may    please,    either    gratuitously    or 

the  States  of  the  Union,  whose  ex-  for     value     received,     by     donation, 

isting  laws  permit  it,  so  long  and  to  testament  or  otherwise,  just  as  those 

the  same  extent  as  the  said  laws  shall  citizens  themselves;   and  in  no   case 


§§  232,  233]   TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.   266 

to  the  said  heir,  .or  other  successor,  such  term  as  the  laws  of  the 
State,  or  the  canton,  will  permit  to  sell  such  property;  he  shall 
be  at  liberty  at  all  times  to  withdraw  and  export  the  proceeds 
thereof  without  difficulty,  and  without  paying  to  the  government 
any  other  charges  than  those  which,  in  a  similar  case,  would  be 
paid  by  an  inhabitant  of  the  country  in  which  the  real  estate 
may  be  situated." 

§  232.  Contention  of  State. — It  was  contended  on  behalf  of 
the  state  of  Virginia  that  the  state  having  fixed  no  time  within 
which  the  alien  heir  might  sell  the  property  and  "withdraw  and 
export  the  proceeds  thereof  without  difficulty,"  it  could  not  be 
done  at  all.  Under  this  construction  the  entire  provision  would 
become  a  nullity.  Mr.  Justice  Swayne,  however,  delivering  the 
opinion  of  the  court,  said  as  to  this  contention:  "The  terms  of  the 
limitation  imply  clearly  that  some  time,  and  not  that  none,  was 
to  be  allowed.  If  it  had  been  proposed  to  those  who  negotiated 
the  treaty  to  express  in  it  the  effect  of  this  construction  in  plain 
language,  can  it  be  doubted  that  it  would  have  been  promptly 
rejected  by  both  sides  as  a  solecism  and  contrary  to  the  intent 
of  the  parties?  Where  a  treaty  admits  of  two  constructions,  one 
restrictive  as  to  the  rights  that  may  be  claimed  under  it  and  the 
other  liberal,  the  latter  is  to  be  preferred."101 

§  233.  Ruling  of  court. — The  court  held  that  the  treaty  was 
within  the  treaty-making  power  conferred  by  the  Constitution, 
and  it  was  the  duty  of  the  court  to  give  it  full  effect.  "If  the 
national  government  has  not  the  power  to  do  what  is  done  by 
such  treaties,  it  cannot  be  done  at  all,  for  the  states  are  expressly 

shall  they  be  subjected  to  taxes  for  ''In  like  manner,  but  with  the 
transfer,  inheritance,  or  any  others  reservation  of  the  ulterior  right  of 
different  from  those  paid  by  the  lat-  establishing  reciprocity  in  regard  to 
ter,  or  to  taxes  which  shall  not  be  possession  and  inheritance,  the  govern- 
equally  imposed.  ment  of  France  accords  to  the  citizens 
"As  to  the  States  of  the  Union  by  of  the  United  States  the  same  rights 
whose  existing  laws  aliens  are  not  within  its  territory  in  respect  to  real 
permitted  to  hold  real  estate,  the  and  personal  property,  and  to  in- 
President  engages  to  recommend  to  heritance,  as  are  enjoyed  there  by  its 
them  the  passage  of  such  laws  as  own  citizens.''  (10  Stats.  996.) 
may  be  necessary  for  the  purpose  of  m  Hauenstein  v.  Lynham,  100  U. 
conferring  this  right.  S.  (10  Otto)  483,  25  L.  ed.  628. 


267  DECISIONS  OF  THE  SUPREME  COURT.  [§    234 

forbidden  to  'enter  into  any  treaty,  alliance  or  confedera- 
tion.' " 102  The  construction  of  treaties  should  be  liberal  so  as 
to  effectuate  the  apparent  intention  of  the  parties  to  secure  equality 
and  reciprocity  between  them.103 

§  234.  Other  decisions  of  supreme  court  of  the  United 
States.— The  ninth  article  of  the  treaty  of  1794  between  the 
United  States  and  Great  Britain  provided:  "It  is  agreed  that 
British  subjects  who  now  hold  lands  in  the  territories  of  the 
United  States,  and  American  citizens  who  now  hold  lands  in  the 
dominions  of  his  majesty,  shall  continue  to  hold  them  according 
to  the  nature  and  tenure  of  their  respective  estates  and  titles 
therein;  and  may  grant,  sell  or  devise  the  same  to  whom  they 
please,  in  like  manner  as  if  they  were  natives,  and  that  neither 
they  nor  their  heirs  or  assigns  shall,  so  far  as  respects  the  said 
lands  and  the  legal  remedies  incident  thereto,  be  considered  as 
aliens. ' ' 

Where  an  alien  was  in  complete,  possession  and  seizure  of  land 
which  continued  up  to  and  after  the  making  of  this  treaty,  it 
was  held  that  as  the  treaty  was  the  supreme  law  of  the  land, 
it  confirmed  the  title  to  him  and  his  heirs  and  assigns,  and  pro- 
tected him  from  any  forfeiture  by  reason  of  alienage.  Although 
the  state  of  Virginia,  in  which  the  lands  were  situated,  once  had 
the  power  to  have  vested  the  estate  completely,  in  itself  or  grantee, 
by  an  inquest  of  office  or  equivalent  proceeding,  yet  as  it  failed 
to  do  so,  its  inchoate  title  and  the  derivative  title  of  its  grantee 
became,  through  the  action  of  the  treaty,  ineffectual  and  void.104 

Under  the  treaty  of  1778  between  the  United  States  and  France, 
the  citizens  of  either  country  were  permitted  to  hold  lands  in 
the  other.  The  abrogation  of  the  treaty  did  not  devest  the  title 
to  lands  once  vested  in  a  French  subject.105  "Where  a  treaty 
is  the  law  of  the  land,  and  as  such  affects  the  rights  of  the 
parties  litigant  in  court,  that  treaty  as  such  binds  their  rights, 
and  is  as  much  to  be  regarded  by  the  court  as  an  act  of  Con- 
gress." On  this  principle  it  was  held  that  a  stipulation  in  a 

102  Hauenstein  v.  Lynham,  supra.  Lessee,  7  Cranch   (U.  S.),  603,  3  L. 

103  De  Geofroy  v.  Kiggs,  133  U.  S.      ed.  453. 

258,  10  Sup.  Ct.  Kep.  295,  33  L.  ed.  105  Carneal  v.  Banks,  10  Wheat.  (U. 
642.  S.)  181,  6  L.  ed.  297. 

104  Fairfax's    Devisee    v.    Hunter's 


§  235]       TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.  268 

treaty  that  property  shall  be  restored  operated  as  an  immedi- 
ate restoration,  and  annulled  a  judgment  of  condemnation  pre- 
viously made.106 

§  235.  Same  subject. — A  native  of  France,  John  Baptiste 
Chirac,  came  to  the  United  States  in  1793,  located  in  Maryland, 
took  in  1795  the  oath  of  citizenship  according  to  the  form  pre- 
scribed by  the  laws  of  Maryland,  and  subsequently  received  a 
conveyance  in  fee  of  land  situated  in  that  state.  Some  years 
later  he  was  naturalized  in  compliance  with  the  laws  of  the 
United  States,  and  the  following  year  died  intestate,  leaving  no 
legitimate  relations  except  certain  natives  and  residents  of 
France.  The  state  of  Maryland,  on  the  assumption  that  the 
lands  were  subject  to  escheat,  conveyed  them  to  the  natural  son 
of  the  decedent,  with  a  saving  of  the  rights  of  all  persons  claim- 
ing by  devise  or  descent  from  the  intestate.  The  French  heirs, 
aliens,  brought  an  action  in  ejectment  for  the  land  and  recovered 
judgment.  The  point  raised  was  that  the  estate  of  the  French  dece- 
dent was  in  his  lifetime  escheatable,  because  it  was  acquired 
before  he  became  a  citizen  of  the  United  States,  the  law  of  the 
state  of  Maryland,  according  to  which  he  took  the  oaths  of  citi- 
zenship, having  been  virtually  repealed  by  the  Constitution  of  the 
United  States  and  the  naturalization  law  enacted  by  Congress. 
The  statute  of  Maryland  required  that  a  French  subject,  who 
would  entitle  himself  under  it  to  hold  lands  in  fee,  should  be  a 
citizen  according  to  the  law  which  should  be  in  force  at  the  time 
of  the  acquisition  of  the  estate,  otherwise  he  could  only  pur- 
chase or  hold  for  life  or  years.  The  decedent  was  not,  according 
to  that  law,  a  citizen  when  he  purchased. 

Mr.  Chief  Justice  Marshall,  delivering  the  opinion  of  the  court, 
said:  "It  is  unnecessary  to  inquire  into  the  consequences  of  this 
state  of  things,  because  we  are  all  of  opinion  that  the  treaty 
between  the  United  States  and  France,  ratified  in  1778,  enabled 
the  subjects  of  France  to  hold  lands  in  the  United  States.  That 
treaty  declared  that  'The  subjects  and  inhabitants  of  the  United 
States,  or  any  one  of  them,  shall  not  be  reputed  aubains  [that 
is,  aliens]  in  France.'  'They  may  by  testament,  donation  or 
otherwise,  dispose  of  their  goods,  movable  and  immovable,  in 
favor  of  such  persons  as  to  them  shall  seem  good;  and  their 

106  United   States  v.   The  Peggy,   1  Cranch,  109,  2  L,.  ed.  49. 


269  DECISIONS  OF  THE  SUPREME  COURT.  [  §    235 

heirs,  subjects  of  the  said  United  States,  whether  residing  in 
France  or  elsewhere,  may  succeed  them  ab  intestato,  without  being 
obliged  to  obtain  letters  of  naturalization.  The  subjects  of  the 
most  Christian  king  shall  enjoy,  on  their  part,  in  all  the  do- 
minions of  the  said  states,  an  entire  and  perfect  reciprocity 
relative  to  the  stipulations  contained  in  the  present  articles/ 
Upon  every  principle  of  fair  construction,  this  article  gave  to 
the  subjects  of  France  a  right  to  purchase  and  hold  lands  in  the 
United  States. 

"It  is  unnecessary  to  inquire  into  the  effect  of  this  treaty  un- 
der the  confederation,  because  before  John  Baptiste  Chirac  emi- 
grated to  the  United  States  the  confederation  had  yielded  to 
our  present  Constitution,  and  this  treaty  had  become  the  su- 
preme law  of  the  land.  The  repeal  of  the  treaty  could  not  affect 
the  real  estate  acquired  by  John  Baptiste  Chirac,  because  he  was 
then  a  naturalized  citizen,  conformably  to  the  act  of  Congress, 
and  no  longer  required  the  protection  given  by  treaty."107  At 
the  time  of  the  death  of  Chirac,  he  being  seised  in  fee  and  his 
heirs  being  subjects  of  France,  there  was  between  the  two  nations 
no  treaty  in  existence,  and  hence  arose  the  question,  Did  the  land 
pass  to  his  heirs  or  become  escheatable?  The  law  of  Maryland 
provided  that  if  any  subject  of  France,  who  should  become  a 
citizen  of  Maryland,  should  die  intestate,  "the  natural  kindred 
of  such  decedent,  whether  in  France  or  elsewhere,  shall  inherit 
his  or  her  real  estate,  in  like  manner  as  if  such  decedent  and  his 
kindred  were  the  citizens  of  this  state."  For  the  purpose  of 
avoiding  the  effect  of  this  claim  in  the  act,  it  was  contended  that 
it  was  passed  for  the  sole  purpose  of  enforcing  the  treaty,  and 
when  the  treaty  was  repealed,  it  was  also  repealed  by  implication. 
The  court  did  not  agree  with  this  contention,  saying:  "The 
enactment  of  the  law  is  positive,  and  its  terms  perpetual.  Its 
provisions  are  not  made  dependent  on  the  treaty ,  and  although 
the  peculiar  state  of  things  then  existing  might  constitute  the 
principal  motive  for  the  law,  the  act  remains  in  force  from  its 
words,  however  that  state  of  things  may  change."  Another 
treaty  was  passed  between  France  and  the  United  States,  and 
the  court  held  that  this  treaty  gave  French  subjects  the  rights 
of  citizens,  so  far  as  respects  property,  and  dispensed  with  the 

107  Chirac    v.    Lessee    of    Chirac,    2  Wheat.    (U.  S.)    259,  4  L.  ed.  234. 


§    236]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  270 

necessity  of  obtaining  letters  of  naturalization,  and  by  removing 
the  incapacity  of  alienage  placed  French  subjects  in  the  same 
situation  with  respect  to  lands  as  if  they  had  become  citizens. 108 

§  236.  Same  subject— Treaties  of  1783  and  1794.— The  Revolu- 
tion did  not  affect  the  capacity  of  British  subjects  or  corporations 
created  by  the  Crown  in  this  country  to  hold  lands.  The  treaty 
of  peace  of  1783  protected  the  property  of  British  corporations 
to  the  same  extent  as  that  of  natural  persons.  The  treaty  of 
1794  confirmed  the  title  thus  protected,  so  that  no  intermediate 
legislative  act  or  other  proceeding  for  the  defect  of  alienage 
could  forfeit  it.  Property  rights  vested  under  a  treaty  are  not 
devested  by  a  termination  of  the  treaty  by  war.109  But  British 
subjects  who  were  born  before  the  Revolution  are  as  incapable 
as  those  born  afterward  of  inheriting  or  transmitting  the  inheri- 
tance of  lands,  and  the  treaties  of  1783  and  1794  provide  only 
for  titles  existing  at  the  time  of  the  execution  of  the  treaties, 
and  not  to  titles  subsequently  acquired.  Under  these  treaties 
actual  possession  was  not  necessary  to  entitle  a  person  to  their 
benefit,  but  the  existence  of  title  at  the  time  was  essential.110 
Accordingly,  where  a  British  subject  came  to  the  United  States 
after  the  execution  of  the  treaty  of  1783  and  before  the  signa- 
ture of  the  treaty  of  1794,  and  died,  seised  of  lands,  the  title  of 
his  heirs  was  not  protected  by  the  treaties.111  The  titles  of 
British  subjects  to  lands  in  the  United  States  which  would  have 
been  liable  to  forfeiture  by  escheat  for  the  defect  of  alienage 
were  completely  protected  by  the  sixth  article  of  the  treaty  of 
peace  of  1783.  It  was  not  intended  that  this  article  should  be 
confined  to  confiscations  jure  beUi.  By  the  ninth  article  of  the 
treaty  of  1794,  the  titles  of  British  subjects,  whatever  such  titles 
may  be,  are  given  the  same  validity  as  if  the  parties  were  citi- 
zens. But  this  article  did  not  intend  to  include  any  other  persons 
than  those  who  were  American  citizens  or  British  subjects.112 

108  Chirac    v.    Lessee    of    Chirac,    2  Edwards,  9  Wheat.  (U.  S.)  489,  6  L. 
Wheat.   (U.  S.)   259,  4  L.  ed.  234.  ed.  142. 

109  Society    etc.    v.    Town    of    New  m  Bright 's  Lessee  v.   Eochester,   7 
Haven,  8  Wheat.    (U.   S.)    464,   5  L.  Wheat.  535,  5  L.  ed.  516. 

ed.  662.  "2  Orr  v.   Hodgson,   4  Wheat.    (U. 

110  Bright  'B  Lessee  v.   Kochester,   7       S.)   453,  4  L.  ed.  613. 
Wheat.  535,  5  L.  ed.  516;  Hughes  v. 


271  VIEWS  OF  EXECUTIVE  DEPARTMENT.  [  §    237 

Yet  under  the  ninth  article  of  the  treaty  of  1794  the  parties 
in  an  action  of  ejectment  must  show  that  the  title  to  the  land 
was  in  them  or  their  ancestors  at  the  time  when  the  treaty  was 
made.113  The  treaty  of  1783  operated  upon  the  condition  of 
affairs  existing  at  that  period,  and  all  persons  who  then  adhered 
to  the  American  states  were,  whether  natives  or  otherwise,  vir- 
tually absolved  from  all  allegiance  to  the  British  crown.  All 
those,  on  the  other  hand,  who  then  adhered  to  the  British  crown 
were  considered  subjects  of  that  crown.  The  marriage  of  an 
American  woman  with  a  British  officer  did  not  change  her  alle- 
giance to  her  state,  as  marriage  with  an  alien,  whether  friend 
or  enemy,  creates  no  dissolution  of  the  native  allegiance  of  the 
wife,  but  her  subsequent  removal  with  her  husband  operated  as 
a  virtual  dissolution  of  her  allegiance,  and  established  her  future 
allegiance  to  the  British  crown  by  the  treaty  of  1783.114  The 
title  of  an  alien  mortgagee  is  protected  by  the  treaty.  But  he 
would  have  this  right  independently  of  the  treaty,  as  his  demand 
is  merely  a  personal  one ;  the  debt  being  the  principal  and  the 
land  an  incident.115  The  title  that  a  British-born  subject  might 
acquire  during  the  Revolution  was  defeasible,  but  after  the  treaty 
became  completely  protected.116 

The  treaty  with  France  supersedes  the  Constitution  and  stat- 
utes of  Nebraska  prohibiting  nonresident  aliens  from  acquiring 
real  estate  by  inheritance  or  otherwise.117 

§    237.    Expression  of  executive  department  of  government. — 

At  various  times  the  question  of  the  extent  to  which  treaties 
would  supersede  state  laws  relative  to  the  succession  of  estates 
has  been  considered  by  the  officers  of  the  executive  department 
of  the  government.  In  1857  Mr.  Gushing,  while  acting  as  attor- 
ney general,  speaking  of  the  treaty  of  1828  with  Prussia,  which 
provided  for  the  disposition  of  personal  and  real  estate  in  each 

113  Harden  v.  Fisher,  1  Wheat.   (U.  Heirs  v.   Kibbe,   14  Pet.   353,   10   L. 
S.)   300,  4  L.  ed.  96.  ed.    490,   involving   title   to   a   lot   of 

114  Shanks   v.    Dupont,    3    Pet.    (U.  ground   in    the    city    of    Mobile,    Mr. 
S.)  242,  7  L.  ed.  666.  Justice     Baldwin,     in     a     concurring 

115  Hughes    v.    Edwards,    9    Wheat.  opinion,     reviews     various     cases     in 
(U.  S.)  489,  6  L.  ed.  142.  which  rights  secured  by  treaties  have 

116  Craig  v.  Eadford,  3  Wheat.  594,  been  enforced. 

4  L.  ed.  467.     In  Lessee  of  Pollard's          m  Bahuaud  v.  Bize,  105  Fed.  485. 


§    237]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  272 

country  by  the  citizens  of  the  other,  declared  that  it  was  "a 
stipulation  of  treaty  constitutional  in  substance  and  form ;  which, 
as  such,  is  the  supreme  law  of  the  land ,  and  which  abrogates  any 
incompatible  law  of  either  of  the  States. ' ' 118 

Mr.  Livingston,  Secretary  of  State,  in  a  note  to  Mr.  de  Sacken, 
Russian  charge,  dated  June  13,  1831,  stated:  "By  the  Federal 
Constitution,  the  several  states  retained  all  the  attributes  of 
sovereignty  which  were  not  granted  to  the  general  gevernment. 
The  right  of  regulating  successions  in  relation  to  the  subject 
in  question  is  not  among  those  conceded  rights;  consequently 
it  was  reserved  to,  and  is  still  vested  in,  the  several  states.  But 
by  the  same  Constitution  it  is  provided  that  treaties  made  under 
the  authority  of  the  general  government  shall  be  the  supreme 
law  of  the  land,  anything  in  the  constitution  or  laws  of  a  state 
to  the  contrary  notwithstanding.  This  very  brief  exposition 
shows  at  once  the  cause  of  the  want  of  comity  in  the  laws  of 
the  United  States  to  which  you  advert,  and  indicates  the  remedy 
which  a  treaty  between  the  nations  would  effectually  apply. ' ' 119 
Mr.  Fish,  Secretary  of  State  in  1874,  in  a  note  to  Aristarchi  Bey, 
explained  that  "the  estates  of  decedents  are  administered  upon 
and  settled  in  the  United  States  under  the  laws  of  the  state  of 
which  the  decedent  was  a  resident  at  the  time  of  his  death,  and 
on  this  account,  in  the  absence  of  any  treaty  regulations  on 
the  subject,  interference  in  the  disposition  of  such  measures 
as  may  be  prescribed  by  the  laws  of  the  particular  state  in  such 
cases  is  not  within  the  province  of  the  federal  authorities. ' '  12° 

In  1870,  while  the  government  was  considering  the  negotiation 
of  a  treaty  with  Baden  regulating  inheritances  and  marriages, 
Mr.  Fish,  Secretary  of  State,  owing  to  doubts  that  had  been 
raised  by  extreme  constructionists  as  to  the  power  under  the 
Constitution  to  conclude  such  a  treaty,  doubts  which,  he  said, 
he  did  not  share,  thought  it  wise,  in  advance  of  any  negotiations, 
to  secure  an  expression  of  opinion  from  the  Senate,  through  the 
chairman  of  the  Committee  on  Foreign  Relations.  This  commit- 
tee "advised  the  negotiations  of  a  treaty"  for  the  purposes  speci- 
fied, if  possible.121 


118  8  Op.  Atty.  Gen.  417.  m  5  Moore  Int.  L.  D.  178;  Davis' 

119  MS.  Notes  to  Foreign  Legations,  Notes,   Treaty  Vol.   1776-1887,   1239; 
IV,  396.  MS.  Inst.  Prussia,  XV,  121. 

120  MS.  Notes  to  Turkey,  I,  115. 


273  DISSENT   FROM    THESE   VIEWS.  [§§    238,    239 

§  238.  Dissent  from  these  views. — Mr.  Bayard,  while  admit- 
ting that  treaties  removing  disabilities  had  been  held  to  be  valid, 
stated:  "Were  the  question  whether  a  treaty  provision  which 
gives  to  aliens  rights  to  real  estate  in  the  states  to  come  up  now 
for  the  first  time,  grave  doubts  might  be  entertained  as  to  how 
far  such  a  treaty  would  be  constitutional.  A  treaty  is,  it  is 
true,  the  supreme  law  of  the  land,  but  it  is  nevertheless  only  a 
law  imposed  by  the  federal  government,  and  subject  to  all  the 
limitations  of  other  laws  imposed  by  the  same  authority.  "While 
internationally  binding  the  United  States  to  the  other  con- 
tracting powers,  it  may  be  municipally  inoperative,  because  it 
deals  with  matters  in  the  states  as  to  which  the  federal  govern- 
ment has  no  right  to  deal.  That  a  treaty,  however,  can  give 
to  aliens  such  rights  has  been  repeatedly  affirmed  by  the  supreme 
court  of  the  United  States ; 122  and  consequently,  however  much 
hesitation  there  might  be  as  to  advising  a  new  treaty  containing 
such  provisions,  it  is  not  open  to  this  Department  to  deny  that 
the  treaties  now  in  existence  giving  rights  of  this  class  to  aliens 
may,  in  their  municipal  relations,  be  regarded  as  operative  in 
the  states."123 

§  239.  In  California. — In  California  at  an  early  day  a  statute 
was  passed  requiring  foreigners  to  procure  a  license  for  the  privi- 
lege of  mining  in  the  state,  and  prohibiting  all  foreigners  who 
had  not  obtained  such  a  license  from  working  the  mines.  A 
proceeding  in  the  nature  of  a  quo  warranto  was  instituted  by 
the  attorney  general  to  procure  the  opinion  of  the  court  upon 
the  validity  of  the  law.  Among  other  grounds  urged  was  that 
the  act  was  in  conflict  with  treaties  with  foreign  nations,  and 
with  the  treaty  of  Queretaro  in  particular.  The  court  held  that 
the  states  possessed  the  inherent  power  of  taxation,  and  that 
its  limitation  and  extent  must,  with  respect  to  subject  matter, 
persons,  amounts  and  times  of  payment,  reside  in  the  discretion 
of  the  government  of  each  state,  and  that  if  it  saw  fit  to  impose  the 

122  Citing  Chirac  v.  Chirac,  2  Wheat.  to    Mr.    Miller,    June'  15,    1886,    160 
259,  4  L.  ed.  234;   Carneal  v.  Banks,  MS.  Dom.  Let.  481;  5  Moore  Int.  L. 
10  Wheat.  181,  6  L.  ed.  297;  Hauen-  D.  179.     See  as  a  similar  opinion  ex- 
stein  v.  Lynham,  100  U.  S.  483,  25  L.  pressed  by  Attorney  General  Wirt,  in 
ed.  628.  1819,  1  Op.  Atty.  Gen.  275. 

123  Mr.  Bayard,  Secretary  of  State, 

Treaties — 18 


239]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


274 


burden  of  taxation  upon  a  portion  of  the  persons  within  the 
sphere  of  its  jurisdiction,  and  specially  to  exempt  others,  its 
legislation,  though  it  might  be  subject  to  the  charge  of  being 
unequal  and  unjust,  would  not  infringe  upon  any  principle  of 
the  Constitution  of  the  United  States.  As  to  the  objection  that 
the  act  was  in  violation  of  treaties  with  foreign  powers,  the 
court  said  that  it  was  a  sufficient  answer  to  this  general  objection 
that  the  complaint  did  not  state  the  nationality  of  any  person 
from  whom  it  was  sought  to  collect  the  tax,  but  waiving  this 
point,  the  court  held  that  the  power  of  taxation  over  foreigners 
could  not  be  taken  away  by  Congress  or  by  treaties  with  foreign  na- 
tions. 124 


124  People  v.  Naglee,  1  Cal.  249,  52 
Am.  Dec.  312.  Said  the  court :  ' '  But 
it  is  contended  that  the  Act  of  the 
Legislature  is  in  violation  of  treaties 
of  the  United  States  with  foreign 
powers.  A  sufficient  answer  to  this 
general  objection  is,  that  the  com- 
plaint does  not  set  forth  the  nation- 
ality of  any  person  upon  whom  the 
respondent  is  alleged  to  have  exercised 
the  functions  of  his  office.  It  charges 
that  he  'has  exacted  the  sum  of 
twenty  dollars  each  from  sundry  for- 
eigners in  the  County  of  San  Fran- 
cisco for  licenses  to  mine' — without 
particularizing  whether  such  foreign- 
ers were  citizens  of  a  nation  with 
which  the  United  States  have  any 
treaty  relations.  It  does  not  state 
whether  they  are  Mexicans,  Chilenos, 
Englishmen,  Frenchmen,  Sandwich 
Islanders  or  Chinese;  and  the  Court 
cannot,  upon  this  demurrer,  determine 
whether  any  treaty  has  been  violated 
by  the  respondent.  This  difficulty 
alone  would,  upon  this  branch  of  the 
plaintiff's  argument,  be  a  serious  ob- 
jection to  his  case;  inasmuch  as  it 
may  be  more  satisfactory  to  have  the 
whole  matter,  so  far  as  this  Court  is 
concerned,  disposed  of  in  all  points 
upon  the  merits,  rather  than  upon 
inadvertences  which  might  be  supplied. 


or  corrected  in  a  subsequent  litigation, 
we  shall  proceed  to  examine  this  posi- 
tion of  the  plaintiff's  counsel.  He 
insists  that  the  Act  is  invalid  because 
it  is  opposed  generally  to  treaties  of 
the  United  States  with  foreign  powers, 
and  particularly  to  the  treaty  of 
Queretaro. 

"First,  as  to  treaties  generally. 
Perhaps  the  most  satisfactory  mode  of 
testing  the  validity  of  the  law,  under 
this  point,  will  be  to  take  the  treaty 
with  that  power  to  whose  subjects  as 
extensive  privileges  are  granted  by 
our  country  as  to  those  of  any  other 
nation.  We  will,  therefore,  consider 
the  case  as  if  it  involved  our  treaty 
relations  with  Great  Britain,  and  un- 
der the  supposition  that  a  subject  of 
the  Queen  of  Great  Britain  was  the 
person  from  whom  the  sum  of  twenty 
dollars  had  been  exacted.  By  the  14th 
Article  of  the  Treaty  of  1794  (known 
as  Jay's  Treaty),  which  was  sub- 
stantially renewed  by  Article  1  of 
the  Treaty  of  1815,  the  subjects  of 
the  King  of  Great  Britain,  coming 
from  his  majesty's  territories  in 
Europe,  had  granted  to  them  liberty 
freely  and  securely,  and  without  hin- 
drance or  molestation,  to  come  with 
their  ships  and  cargoes,  to  the  lands, 
countries,  cities,  ports,  places  and 


CONSTITUTIONALITY  OP  STATUTES. 


240 


§  240.  Constitutionality  of  statutes. — In  a  later  case  in  Cali- 
fornia, an  act  levying  on  each  person  of  the  Mongolian  race 
residing  in  the  state,  except  such  as  should  take  out  licenses  to 


rivers  within  our  territories,  and  enter 
the  same,  to  resort  there,  to  remain 
and  reside  there,  without  limitation 
of  time;  and  reciprocal  liberty  was 
granted  to  the  people  of  the  United 
States  in  his  majesty's  European  ter- 
ritories; but  subject  always,  as  re- 
spects this  article,  to  the  laws  and 
statutes  of  the  two  countries  respec- 
tively. By  this  treaty,  our  inhabitants, 
whilst  in  the  British  dominions  were 
to  abide  by  the  laws  of  Great  Britain; 
and  the  subjects  and  inhabitants  of 
that  country,  when  in  our  territories, 
were  to  abide  by  the  laws  of  the 
United  States  and  by  the  laws  of  the 
respective  States  where  they  might  be. 
The  only  question,  then,  under  this 
treaty  is,  whether  the  Act  of  the 
Legislature  falls  within  the  scope  of 
the  powers  of  a  sovereign  nation,  and, 
at  the  same  time,  is  not  included  in 
the  category  of  powers  granted  by  the 
States  to  the  General  Government; 
for,  if  it  falls  within  the  former,  and 
is  excluded  from  the  latter,  then  it 
is  one  of  the  laws  which  the  treaty 
itself  makes  obligatory  upon  British 
subjects.  But  we  have  seen  that  the 
power  of  taxation,  and  the  power  of 
prescribing  the  conditions  upon  which 
aliens  shall  be  permitted  to  reside  in 
a  State,  are  attributes  of  a  sovereign 
nation,  which  have  not,  except  in  cer- 
tain specified  cases,  of  which  the 
present  is  not  one,  been  given  up  to 
the  Federal  Government.  Our  statute, 
then,  is  one  of  the  laws  or  statutes, 
to  which  the  treaty,  by  its  own  terms, 
provides  that  the  subjects  of  Great 
Britain  shall  be  subject.  Chief  Jus- 
tice Taney,  in  speaking  of  this  treaty 
in  Norris  v.  The  City  of  Boston,  and 


Smith  v.  Turner  (7  How.  472),  12  L. 
ed.  724,  uses  the  following  language: 
'The  permission  there  mutually  given 
to  reside  and  hire  houses  and  ware- 
houses and  to  trade  and  traffic,  is  in 
express  terms  made  subject  to  the 
law  of  the  two  countries  respectively. 
Now  the  privileges  here  given  within 
the  several  States  are  all  regulated 
by  State  laws,  and  the  reference  to 
the  laws  of  this  country  necessarily 
applied  to  them,  and  subjects  the 
foreigner  to  their  decision  and  con- 
trol. ' 

' '  The  Act,  then,  is  not  repugnant 
to  that  Treaty.  But  even  if  the  pro- 
visions of  the  statute  did  clash  with 
the  stipulations  of  that,  or  of  any 
other  treaty,  the  conclusion  is  not 
deducible  that  the  treaty  must,  there- 
fore, stand,  and  the  State  law  give 
way.  The  question  in  such  case  would 
not  be  solely  what  is  provided  for 
by  the  treaty,  but  whether  the  State 
retained  the  power  to  enact  the  con- 
tested law,  or  had  given  up  that 
power,  to  the  General  Government. 
If  the  State  retains  the  power,  then 
the  President  and  Senate  cannot  take 
it  away  by  a  treaty.  A  treaty  is 
supreme  only  when  it  is  made  in  pur- 
suance of  that  authority  which  has 
been  conferred  upon  the  treaty-mak- 
ing Department,  and  in  relation  to 
those  subjects  the  jurisdiction  over 
which  has  been  exclusively  entrusted 
to  Congress.v  When  it  transcends  these1 
limits,  like  an  Act  of  Congress  which 
transcends  the  constitutional  authority 
of  that  body,  it  cannot  supersede  a 
State  law  which  enforces  or  exercises 
any  power  of  the  State  not  granted 
away  by  the  Constitution.  To  hold 


§    240]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES. 


276 


work  in  the  mines  or  to  prosecute  some  kind  of  business,  a  monthly 
tax,  was  held  to  be  unconstitutional,  because  it  was  in  violation 
of  the  provision  of  the  Constitution  of  the  United  States  giving 


any  other  doctrine  than  this,  would, 
if  carried  out  into  its  ultimate  con- 
sequences, sanction  the  supremacy  of 
a  treaty  which  should  entirely  exempt 
foreigners  from  taxation  by  the  re- 
spective States,  or  which  should  even 
undertake  to  cede  away  a  part,  or  the 
whole  of  the  acknowledged  territory 
of  one  of  the  States  to  a  foreign 
nation.  In  the  License  Cases  (5  How. 
603,  12  L.  ed.  300)  Mr.  Justice  Dan- 
iels, speaking  of  the  provisions  of  the 
Constitution  in  relation  to  treaties, 
holds  the  following  language:  'This 
provision  of  the  Constitution,  it  is  to 
be  feared,  is  sometimes  expounded 
without  those  qualifications  which  the 
character  of  the  parties  to  this  in- 
strument, and  its  adaptation  to  the 
purposes  for  which  it  was  created, 
necessarily  imply.  Every  power  dele- 
gated to  the  Federal  Government  must 
be  expounded  in  coincidence  with  a 
perfect  right  in  the  States  to  all  that 
they  have  not  delegated;  in  coinci- 
dence, too,  with  the  possession  of 
every  power  and  right  necessary  for 
their  existence  and  preservation;  for 
it  is  impossible  to  believe,  that  these 
ever  were,  either  in  intention  or  in 
fact,  ceded  to  the  General  Govern- 
ment. Laws  of  the  United  States,  in 
order  to  be  binding  must  be  within  the 
legitimate  powers  vested  by  the  Con- 
stitution. Treaties,  in  order  to  be 
valid,  must  be  made  within  the  scope 
of  the  same  power,  for  there  can  be 
no  authority  of  the  United  States, 
save  what  is  derived  mediately  or  im- 
mediately, and  regularly,  and  legiti- 
mately from  the  Constitution.  A 
treaty,  no  more  than  an  ordinary  stat- 
ute, can  arbitrarily  cede  away  one 
right  of  a  State,  or  of  any  citizen  of 


a  State.'  It  is  not  within  the  scope 
of  a  constitutional  treaty  to  interfere 
with  the  reserved  powers  of  taxation 
and  of  control  over  foreigners,  which 
we  have  above  discussed.  No  treaty, 
within  our  knowledge,  has  attempted 
to  do  it;  and  if  such  attempt  should 
be  made,  the  stipulation  would,  we 
apprehend,  be  neither  recognized  nor 
enforced  by  the  supreme  tribunal  of 
the  nation.  'If,'  says  Chief  Justice 
Taney  (7  How.  466,  12  L.  ed.  779), 
'the  United  States  have  the  power, 
then  any  legislation  by  the  State  in 
law,  would  also  be  void,  and  this 
Court  bound  to  disregard  it.' 

"And  here  let  us  remark  that  the 
questions  which  we  have  been  examin- 
ing are  questions  of  power,  and  not 
questions  of  justice,  or  policy,  or  ex- 
pediency. We  hold  that  the  power 
of  taxation  over  foreigners,  as  well  as 
of  determining  the  conditions  on 
which  they  shall  be  permitted  to  enjoy 
the  protection  of  the  State  in  a  par- 
ticular place  or  occupation,  is,  in  the 
language  of  the  Supreme  Court  of 
the  United  States,  'perfect  and  un- 
diminished  and  indispensable/  and 
that  it  cannot  be  taken  away  or  im- 
paired by  Acts  of  Congress  or  Treaties 
with  foreign  nations;  and  that  the 
justice  and  expediency  of  tax  and 
license  laws  must,  so  far  as  foreigners 
are  concerned  whilst  residing  within 
our  territorial  limits,  be  left  to  the 
discretion  of  the  States  respectively, 
to  be  exercised  as  the  wisdom  of  their 
Legislatures  shall  dictate,  subject  only 
to  such  restrictions  as  may  be  im- 
posed by  the  organic  laws  of  the  sev- 
eral States. ' '  People  v.  Naglee,  1 
Cal.  245-248,  52  Am.  Dec.  312. 


277 


CONSTITUTIONALITY  OF  STATUTES. 


:§  240 


Congress  power  to  regulate  commerce  with  foreign  nations.125 
Mr.  Justice  Field,  who  afterward  became  an  associate  justice  of 
the  supreme  court  of  the  United  States,  dissented,  and  stated  that 
he  concurred  fully  in  the  opinion  expressed  in  People  v.  Nag- 
lee,126  as  to  the  powers  of  the  state  to  tax  foreigners  as  a 
class.127  It  was,  however,  recognized  at  an  early  day  that  treaties 
might  remove  the  disability  of  aliens  to  inherit.128  It  was  con- 
tended that  this  principle  would  permit  the  federal  government 
to  control  the  internal  policy  of  the  states,  but  the  court  an- 
swered that  this  was  one  of  the  results  of  the  national  com- 
pact.129 


125  Lin   Sing  v.   Washburn,   20   Cal. 
534. 

126  1  Cal.  249,  52  Am.  Dec.  312. 

127  Lin   Sing  v.  Washburn,  20  Cal. 
534.      That    the    constitutional    pro- 
vision   that    taxation    shall    be    equal 
and  uniform  throughout  the  state  has 
application    only    to    direct    taxation 
upon  property,  see  People  v.  Coleman, 
4  Cal.  46,  52,  60  Am.  Dec.  586,  and 
note  j  People  v.  McCreery,  34  Cal.  448, 
450.     As  to  the  power  of  a  state  to 
enact  license  laws,  see  note  to  People 
v.   Mayor  of  Brooklyn,   55  Am.   Dec. 
288;   note  to  Ash  v.  People,  83  Am. 
Dec.  742;  note  to  Allentown  v.  Tele- 
graph Co.,  52  Am.  St.  Kep.  246.     A 
statute  imposing  a  tax  upon  a  foreign 
corporation  doing  business  in  the  state 
does  not  violate  the  federal  Constitu- 
tion.    Southern  B.  &  L.  Assn.  v.  Nor- 
man, 98  Ky..294,  56  Am.  St.  Kep.  367, 
32  S.  W.  952,  31  L.  B.  A.  41.    A  state 
has    the    power   to    impose   upon   cor- 
porations  of   other   states   a   tax   for 
the    privilege    of    doing   business,    al- 
though no  equivalent  tax  is  imposed 
upon  its  domestic  corporations.     Com- 
monwealth   v.    Melton,    12    B.    Mon. 
(Ky.)    212,    54    Am.    Dec.    522;    At- 
torney General  v.  Bay  State  Min.  Co., 
99  Mass.  148,  96  Am.  Dec.  717.     But 
see   as   to   taxing  a   foreign   corpora- 
tion   in    a    different    mode    from    do- 


mestic corporations,  Erie  Ey.  Co.  v. 
State,  31  N.  J.  L.  531,  86  Am.  Dec. 
226. 

128  People  v.  Gerke,  5  Cal.  381. 

129  People    v.    Gerke,    5    Cal.    381. 
Mr.  Justice  Heydenfeldt  said:   "The 
Attorney  General,  in  support   of  the 
information  filed  in  this  case,  denies 
the    power    of    the    Federal    Govern- 
ment   to,  make    such    a    provision   by 
treaty,  and  the  determination  of  this 
case    depends    upon    the    solution    of 
that  question.     Cases  have  frequently 
arisen  where   aliens  have   claimed  to 
inherit  by  virtue  of  treaty  provisions 
analogous  to  the  one  under  considera- 
tion,  and  in  all  of  them,   so   far  as 
I  have  examined,  the  stipulations  were 
enforced    in    favor    of    the    foreign 
claimants.     See    Chirac    v.    Chirac,    2 
Wheat.  259,  4  L.  ed.  234,  4  Wheat. 
453,  4  L.  ed.  613,  8  Wheat.  464,  5  L. 
ed.  662,  9  Wheat.  489,  6  L.  ed.  142, 
10  Wheat.  181,  6  L.  ed.  297. 

"But  in  none  of  these  cases  was 
the  question  raised  as  to  the  power 
of  the  Federal  Government  to  make 
the  treaty.  It  has  been  the  practice 
of  the  Government  from  an  early 
period  after  the  ratification  of  the 
Constitution,  and  its  power  is  now, 
I  believe,  for  the  first  time  disputed. 

1 1  The  language  which  grants  the 
power  to  make  treaties,  contains  no 


240]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


278 


Shortly  afterward  the  supreme  court  of  that  state  decided  that 
as  a  nonresident  alien  could  not  inherit  land,  he  could  not  main- 
tain ejectment,  and  that  the  treaty  between  the  United  States 


words  of  limitation;  it  does  not  fol- 
low that  the  power  is  unlimited.  It 
must  be  subject  to  the  general  rule, 
that  an  instrument  is  to  be  construed 
so  as  to  reconcile  and  give  meaning 
and  effect  to  all  its  parts.  If  it  were 
otherwise,  the  most  important  limita- 
tion upon  the  powers  of  the  Federal 
Government  would  be  ineffectual,  and 
the  reserved  rights  of  the  States 
would  be  subverted.  The  principle  of 
construction  as  applied,  not  only  in 
reference  to  the  Constitution  of  the 
United  States,  but  particularly  in  the 
relation  of  all  the  rest  of  it  to  the 
treaty-making  grant,  was  recognized 
both  by  Mr.  Jefferson  and  John 
Adams,  two  leaders  of  opposite 
Rchools  of  construction.  See  Jeffer- 
son's Works,  vol.  Ill,  p.  135;  and 
vol.  VI,  p.  560. 

"It  may,  therefore,  be  assumed 
that,  aside  from  the  limitations  and 
prohibitions  of  the  Constitution  upon 
the  powers  of  the  Federal  Govern- 
ment, 'the  power  of  treaty  was  given, 
without  restraining  it  to  particular 
objects,  in  as  plenipotentiary  a  form 
as  held  by  any  sovereign  in  any 
other  society.'  This  principle,  as 
broadly  a»  I  have  deemed  proper  to 
lay  it  down,  results  from  the  form 
and  necessities  of  our  Government, 
as  elicited  by  a  general  view  of  the 
Federal  compact.  Before  the  com- 
pact, the  States  had  the  power  of 
treaty  making  as  potentially  as  any 
power  on  earth;  it  extended  to  every 
subject  whatever.  By  the  compact, 
they  expressly  granted  it  to  the  Fed- 
•eral  Government  in  general  terms, 
and  prohibited  it  to  themselves. 

"The  General  Government  must, 
therefore,  hold  it  as  fully  as  the 


States  held  who  granted  it,  with  the 
exceptions  which  necessarily  flow  from 
a  proper  construction  of  the  other 
powers  granted,  and  those  prohibited 
by  the  Constitution.  The  only  ques- 
tions, then,  which  can  arise  in  the 
consideration  of  the  validity  of  a 
treaty,  are:  First,  Is  it  a  proper  sub- 
ject of  treaty  according  to  interna- 
tional law  or  the  usage  and  practice 
of  civilized  nations?  Second,  Is  it 
prohibited  by  any  of  the  limitations 
in  the  Constitution? 

"Taking  for  illustration  the  pres- 
ent subject  of  treaty,  no  one  will  deny 
that,  to  the  commercial  States  of  the 
Union,  and  indeed  to  the  citizens  of 
any  State  who  are  engaged  in  foreign 
commerce,  a  stipulation  to  remove  the 
disability  of  aliens  to  hold  property 
is  of  paramount  importance  or,  at  any 
rate,  it  may  be  so  considered  by  the 
States,  and  demanded  as  a  part  of 
their  commercial  polity. 

' '  Now,  as  by  the  compact  the  States 
are  absolutely  prohibited  from  mak- 
ing treaties,  if  the  General  Govern- 
ment has  not  the  power,  then  we 
must  admit  a  lameness  and  incom- 
pleteness in  our  whole  system,  which 
renders  us  inferior  to  any  other  en- 
lightened nation,  in  the  power  and 
ability  to  advance  the  prosperity  of 
the  people  we  govern. 

' '  Mr.  Calhoun,  in  his  discourse  on 
the  Constitution  and  Government  of 
the  United  States,  has  given  to  this 
power  a  full  consideration,  and  I  can- 
not doubt  that  the  view  which  I  have 
taken  is  sustained  by  his  reasoning. 
According  to  his  opinion,  the  follow- 
ing may  be  classed  as  the  limitations 
on  the  treaty-making  power:  First, 
it  is  limited  strictly  to  questions  inter 


279 


CONSTITUTIONALITY  OF  STATUTES. 


[§  240 


and  the  Hanseatic  towns  had  not  enlarged  the  rights  of  natives 
of  the  latter  in  this  respect,  because  the  treaty  conferred  upon 
them  only  the  right  to  dispose  of  land,  which  they  were  inca- 


alios,  'all  such  clearly  appertain  to 
it. '  Second.  '  By  all  the  provisions 
of  the  Constitution  which  inhibit  cer- 
tain acts  from  being  clone  by  the 
Government  or  any  of  its  depart- 
ments. '  Third,  '  By  such  provisions 
of  the  Constitution  as  direct  certain 
acts  to  be  done  in  a  particular  way, 
and  which  prohibit  the  contrary. ' 
Fourth,  '  It  can  enter  into  no  stipu- 
lation calculated  to  change  the  char- 
acter of  the  Government,  or  to  do 
that  which  can  only  be  done  by  the 
Constitution  making  power;  or  which 
is  inconsistent  with  the  nature  and 
structure  of  the  Government  or  the 
objects  for  which  it  was  formed.' 

' '  Having  stated  these  as  the  only 
limitations,  the  author  adds,  'Within 
these  limits  all  questions  which  may 
arise  between  us  and  other  powers, 
be  the  object  what  it  may,  fall  within 
the  limits  of  the  treaty  making  power, 
and  may  be  adjusted  by  it. ' 

1 '  One  of  the  arguments  at  the  bar 
against  the  extent  of  this  power  of 
treaty  is,  that  it  permits  the  Federal 
Government  to  control  the  internal 
policy  of  the  States,  and,  in  the  pres- 
ent case,  to  alter  materially  the  stat- 
utes of  distribution. 

"If  this  was  to  the  full  extent 
claimed,  it  might  be  a  sufficient  an- 
swer to  say,  that  it  is  one  of  the  re- 
sults of  the  compact,  and,  if  the 
grant  be  considered  too  improvident 
for  the  safety  of  the  States,  the  evil 
can  be  remedied  by  the  constitution 
making  power.  I  think,  however,  that 
no  such  consequence  follows  as  is  in- 
sisted. The  statutes  of  distribution 
are  not  altered  or  affected.  Alienage 
is  the  subject  of  the  treaty.  Its  dis- 
ability results  from  political  reasons 


which  arose  at  an  early  period  of  the 
history  of  civilization,  and  which  the 
enlightened  advancement  of  modern 
times,  and  changes  in  the  political 
and  social  conditions  of  nations,  have 
rendered  without  force  or  consequence. 
The  disability  to  succeed  to  property 
is  alone  removed,  the  character  of  the 
person  is  made  politically  to  undergo 
a  change,  and  then  the  statute  of  dis- 
tribution is  left  to  its  full  effect,  un- 
altered and  unimpaired  in  word  or 
sense.  If  there  is  one  object  more 
than  another  which  belongs  to  our 
political  relations,  and  which  ought 
to  be  the  subject  of  treaty  regula- 
tions, it  is  the  extension  of  this  comity 
which  is  so  highly  favored  by  the 
liberal  spirit  of  the  age,  and  so  con- 
ducive in  its  tendency  to  the  peace 
and  amity  of  nations.  Even  if  the 
effect  of  this  power  was  to  abrogate 
to  some  extent  the  legislation  of  the 
States,  we  have  authority  for  admit- 
ting it,  if  it  does  not  exceed  the  lim- 
itations which  we  have  cited  from 
the  work  of  Mr.  Calhoun,  and  laid 
down  as  the  rule  to  which  we  yield 
our  assent. 

"During  the  war  of  the  Revolution, 
the  States  had  passed  Acts  of  con- 
fiscation; Acts  against  the  collection 
of  debts  due  to  the  subjects  of  Great 
Britain;  and  Acts  for  the  punishment 
of  treason.  By  the  treaty  of  peace, 
the  effects  of  these  various  Acts  were 
provided  against;  and  as  late  as  1792, 
long  after  the  ratification  of  the 
Constitution,  Mr.  Jefferson,  in  an- 
swer to  the  complaint  of  the  British 
Minister,  Mr.  Hammond,  distinctly 
recognized  the  doctrine,  that  treaties 
are  the  supreme  law  of  the  land,  and 
that  State  legislation  must  yield  to 


§    240]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES. 


280 


pacitated  from  inheriting  by  reason  of  their  alienage.  Mr.  Jus- 
tice Murray,  who  delivered  the  opinion  of  the  court,  said  that 
while  the  court  had  affirmed  the  constitutionality  of  a  similar 


them;  and  he  therein  cites  the  Acts 
of  State  Legislatures  and  the  deci- 
sions of  State  Judges,  who  all  con- 
form to  the  same  opinion.  See  vol. 
Ill,  Jefferson's  Works,  365. 

"I  see  no  danger  which  can  result 
from  yielding  to  the  Federal  Govern- 
ment the  full  extent  of  powers  which 
it  may  claim  from  the  plain  language, 
intent,  and  meaning  of  the  grant 
under  consideration.  Upon  some  sub- 
jects, the  policy  of  a  State  Govern- 
ment, as  shown  by  her  legislation,  is 
dependent  upon  the  policy  of  foreign 
governments,  and  would  be  readily 
changed  upon  the  principle  of  mutual 
concession.  This  can  only  be  effected 
by  the  action  of  that  branch  of  the 
State  sovereignty  known  as  the  Gen- 
eral Government,  and  when  effected, 
the  State  policy  must  give  way  to 
that  adopted  by  the  governmental 
agent  of  her  foreign  relations. 

"It  results  from  these  views,  that 
the  treaty  of  1828,  with  Prussia,  is 
valid,  and  that  aliens,  subjects  of 
Prussia,  are  protected  by  its  provi- 
sions. ' ' 

Mr.  Justice  Bryan  said:  "I  agree 
with  my  associate,  that  the  doctrine 
has  been  settled  in  the  United  States 
Courts,  in  cases  relating  to  analogous 
treaties  to  the  one  in  question,  that 
the  Courts  of  the  country  should  ex- 
tend to  aliens  the  full  protection 
which  the  treaty  seeks  to  give  them, 
in  the  acquisition  or  distribution  of 
property. 

' '  In  Chirac  v.  Chirac,  2  Wheat.  259, 
4  L.  ed.  234,  the  treaty  with  France 
of  1778,  was  passed  upon,  and  it  was 
decided  by  the  United  States  Court, 
that  it  secured  to  the  citizens  and 


subjects  of  either  power,  the  privi- 
lege of  holding  lands  in  the  territory 
of  the  other.  This  was  reaffirmed  in 
Cavneac  v.  Banks,  10  Wheat.  189,  6 
L.  ed.  297.  A  similar  provision  of 
the  treaty  with  Great  Britain  of  1794, 
was  also  sanctioned  by  the  Supreme 
Court  of  the  United  States,  in  Hughes 
v.  Edwards,  9  Wheat.  489,  6  L.  ed. 
142.  So  far  as  the  authority  of  the 
Federal  Courts  is  concerned,  they  ap- 
pear to  have  uniformly  administered 
the  law  upon  the  meaning  given  by 
construction  to  the  language  of  the 
treaty,  seeming  never  to  have,  in  any 
respect,  doubted  the  power  of  the 
General  Government  to  provide  by 
treaty  with  a  foreign  power  for  the 
mutual  protection  of  the  property  be- 
longing to  the  citizens  or  subjects  of 
each  in  the  territory  of  the  other. 
The  treaty-making  power  of  the  Fed- 
eral Government  must,  from  necessity, 
be  sufficiently  ample  so  as  to  cover 
all  of  the  usual  subjects  of  treaties 
between  different  powers.  If  we  were 
to  deny  to  the  treaty-making  power 
of  our  government  the  exercise  of 
jurisdiction  over  the  property  of  de- 
ceased aliens,  upon  the  ground  of  in- 
terference with  the  course  of  descents, 
or  the  laws  of  distribution  of  a  State 
where  property  may  exist;  by  parity 
of  reasoning  we  should  not  make  com- 
mercial treaties  with  foreign  nations; 
because,  it  might  be  said,  some  of 
their  provisions  would  injure  the  busi- 
ness of  a  portion  of  the  citizens  of 
one  of  the  States  of  the  Union. 

"If  the  treaty-making  power  which 
resides  in  the  Federal  Government  is 
not  sufficient  to  permit  it  to  arrange 
with  a  foreign  nation  the  distribution 


281  TREATY   MAY  REGULATE  RIGHTS.  [§§    241,    242 

treaty  stipulation,  he  entertained  doubts  of  the  correctness  of 
the  decision.130 

§  241.  Rule  recognized  that  treaty  may  regulate  rights. — The 
rule  is  definitely  announced  in  California  that  the  rights  of  aliens 
to  possess  and  enjoy  property  in  the  United  States  may  be  regu- 
lated by  treaty,  and  that  all  state  legislation  to  the  contrary  must 
yield  to  a  treaty  as  the  supreme  law.  The  right  to  regulate  the 
tenure  of  real  property  within  a  state  is  primarily  a  state  right, 
and  a  state  may  permit  aliens  to  take  hold  and  dispose  of  prop- 
erty, real  and  personal,  to  any  extent  that  will  not  conflict  with 
the  provisions  of  a  treaty.  While  the  common-law  rule  is  that 
an  alien  does  not  possess  inheritable  blood,  the  state  may  change 
this  rule,  and  remove  the  disability,  if  there  is  no  paramount 
law  to  prevent  it.  The  fact  that  the  treaty  between  the  United 
States  and  Great  Britain  is  silent  upon  the  subject  matter  of  the 
right  of  citizens  of  the  latter  country  to  inherit  property  within 
the  United  States  is  not,  in  effect,  a  denial  of  that  right,  nor 
can  it  in  any  manner  affect  the  power  of  the  state  to  confer  the 
right.131 

§  242.  In  Delaware. — That  a  treaty  is  paramount  to  a  statute 
was  likewise  declared  in  Delaware.  The  code  of  that  state  pro- 
vides that  it  shall  be  no  objection  to  the  kindred,  husband  or 

of    an    alien  'a    property,    then    that  laws  in  question. ' '     People  v.  Gerke, 

power  resides  nowhere  (since  it  is  de-  5    Cal.    381,   was   cited   in   Blythe   v. 

nied  to  the  States),  and  we  must  con-  Hinckley,  127  Cal.  435,  59  Pac.  787; 

fess    our    system    of    government    so  approved    in   Wunderle   v.    Wunderle, 

weak  and  faulty,  as  to  be  incapable  144  111.  54,  33  N.   E.   195,   19  L.  E. 

of  extending  to  its  citizens  in  foreign  A.  84,  Opel  v.  Shoup,  100  Iowa,  407, 

lands   that   protection   which   is   most  69  N.  W.  560,  37  L.  E.  A.  583,  and 

common  amongst  a  majority  of  mod-  De  Geofroy  v.  Eiggs,  133  U.  S.  267,  10 

ern     civilized     nations."     People     v.  Sup.    Ct.    Eep.    295,    33    L.    ed.    642; 

Gerke  &  Clark,  5  Cal.  383.  and  also  cited  in  Hauenstein  v.  Lyn- 

In  Forbes  v.  Scannell,  13  Cal.  242,  ham,   100  U.   S.   490,   25   L.   ed.   628. 
Mr.   Justice  Baldwin  said    (p.    282)  :  ™  Siemssen  v.  Bofer,  6  Cal.  252. 

"In   People   v.    Gerke    (5    Cal.    381),  131  Blythe  v.  Hinckley,  127  Cal.  431, 

this    court    in    giving    effect    to    the  59   Pac.    787.     State  laws  in   conflict 

treaty  with  the  kingdom  of  Prussia,  with  a  treaty  are  not  so  much  void 

which  had  direct  effect  on  property  in  as  they  are  suspended  and  controlled 

this    state    in   opposition   to   its   laws  during  the  life  of  the  treaty.     Blythe 

of  descent,  went  further  than  is  nee-  v.    Hinckley,    supra, 
essary  to  go  to  uphold  the  treaty  and 


§    242]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES. 


282 


widow  of  any  alien,  of  any  citizen  deceased,  taking  lands  through 
the  intestate  laws,  that  they  are  aliens,  provided  that  at  the 
time  of  the  intestate 's  death  they  reside  within  the  United  States. 
The  code  also  declares  that  if  any  such  kindred  are  aliens  and 
do  not  reside  within  the  limits  of  the  United  States  at  the  time 
of  the  death  of  the  intestate,  they  shall  be  passed  as  if  they 
were  dead.  The  treaty  with  Great  Britain,  ratified  July  28, 
1900,132  provided  that,  if  on  the  death  of  any  person  holding 
real  property  within  the  territory  of  one  of  the  contracting  par- 
ties, a  citizen  or  subject,  were  it  not  for  the  disqualification  by 
the  laws  of  the  country  in  which  such  real  property  is  situated, 
would  be  entitled  to  take  it,  such  citizen  or  subject  shall  be  al- 
lowed three  years  in  which  to  sell  the  same.  The  code  is  in 
violation  of  this  treaty,  which  contemplates  the  removal  of  the 
disqualification  of  alienage,  and  places  the  next  of  kin,  though 
aliens,  on  the  same  plane  as  if  they  were  residents  of  the  state.133 


™  31  Stats.  1939. 

133  Dockstader  v.  Kershaw,  4  Penne. 
(Del.)  398,  S.  C.,  sub  nom.  Doe  v. 
Koe,  55  Atl.  341.  In  that  case  the 
defendant  contended  that  the  lan- 
guage of  the  treaty  was  so  obscure, 
ambiguous  and  contradictory,  as  to 
be  incapable  of  any  sensible  inter- 
pretation, and  referring  to  this,  the 
court  said :  "It  is  almost  inconceiv- 
able that  the  language  of  a  paper  of 
such  grave  importance  as  this  treaty 
between  two  great  nations  should  be 
clothed  in  language  at  once  so  loose 
and  careless.  It  reflects  but  little 
credit  upon  the  persons  charged  with 
the  duty  of  forming  this  treaty,  and 
suggests  that  some  degree  of  com- 
petency should  hereafter  be  required 
in  such  cases.  Still,  however,  in  ap- 
plying the  ordinary  rules  of  inter- 
pretation to  the  plain  purposes  and 
scope  of  the  treaty,  it  seems  to  us 
that  section  1  of  the  treaty  contem- 
plates the  elimination  of  the  disqual- 
ification of  alienage  in  the  next  of 
kin,  so  far  as  it  relates  to  the  sub- 
ject matter  of  this  suit,  and  puts 


the  next  of  kin  on  the  same  footing 
as  if  they  were  all  residents  of  this 
state  at  the  time  of  the  death  of  the 
intestate. ' ' 

Article  1  of  the  treaty  referred  to 
reads :  ' '  Where,  on  the  death  of  any 
person  holding  real  property  (or  prop- 
erty not  personal)  within  the  terri- 
tories of  one  of  the  contracting  par- 
ties, such  real  property  would,  by  the 
laws  of  the  land,  pass  to  a  citizen 
or  subject  of  the  other,  were  he  not 
disqualified  by  the  laws  of  the  coun- 
try where  such  real  property  is  situ- 
ated, such  citizen  or  subject  shall  be 
allowed  a  term  of  three  years  in  which 
to  sell  the  same,  this  term  to  be  rea- 
sonably prolonged  if  circumstances 
render  it  necessary,  and  to  withdraw 
the  proceeds  thereof,  without  restraint 
or  interference,  and  exempt  from  any 
succession,  probate  or  administrative 
duties  or  charges  other  than  those 
which  may  be  imposed  in  like  cases 
upon  the  citizens  or  subjects  of  the 
country  from  which  such  proceeds  may 
be  drawn." 


283  IN  ILLINOIS.  [§§  243,  244 

§  243.  In  Illinois.— Under  the  Revised  Statutes  of  Illinois  of 
1845  aliens  residing  in  the  state  were  rendered  capable  of  taking 
and  transmitting;  real  estate  to  the  same  extent  as  if  the  aliens 
were  citizens  of  the  United  States,  and  it  was  provided  that  "it 
shall  be  no  objection  to  any  persons  having  an  interest  in  such 
estate  that  they  are  not  citizens  of  the  United  States,  but  all 
such  persons  shall  have  the  same  rights  and  remedies,  and  in 
all  things  be  placed  on  the  same  footing,  as  natural-born  citizens 
and  actual  residents  of  the  United  States."  In  1851,  the  stat- 
ute was  amended,  by  the  omission  of  the  words  "residing  in 
this  state,"  thus  conferring  upon  all  aliens,  whether  residing  in 
Illinois  or  not,  the  right  to  take  and  transmit  lands  by  deed, 
will  or  otherwise.134  In  1887  an  act  was  passed  restricting  the 
right  of  aliens  to  acquire  and  hold  real  and  personal  estate, 
and  providing  that  a  "nonresident  alien,  firm  of  aliens,  or 
corporation  organized  under  the  laws  of  any  foreign  country 
shall  not  be  capable  of  acquiring  title  to  or  taking  or  holding 
any  lands  or  real  estate  in  this  state  by  descent,  devise,  purchase, 
or  otherwise,  except  that  the  heirs  of  aliens  who  have  heretofore 
acquired  lands  in  this  state  under  the  laws  thereof,  and  the 
heirs  of  aliens  who  may  acquire  lands  under  the  provisions  of 
this  act,  may  take  such  lands  by  devise  or  descent,  and  hold 
the  same  for  the  space  of  three  years  and  no  longer,  if  such 
alien  at  the  time  of  acquiring  such  lands  is  of  the  age  of  twenty- 
one  years,  and  if  not  twenty-one  years  of  age,  then  for  the 
term  of  five  years  from  the  time  of  acquiring  such  lands ;  and  if, 
at  the  end  of  the  time  herein  limited,  such  lands  so  acquired  by 
such  alien  heirs  have  not  become  actual  residents  of  this  state, 
the  same  shall  revert  and  escheat  to  the  state  of  Illinois  the  same 
as  the  lands  of  other  aliens  under  the  provisions  of  this  act."135 

§  244.  Existence  of  treaty. — An  owner  of  land  in  Illinois  died 
intestate,  leaving  among  other  heirs  a  brother  and  a  sister,  who 
were,  and  always  had  been,  residents  of  the  grand  duchy  of  Ba- 
den, and  subjects  of  the  German  Empire.  They  were  not  en- 
titled to  take  any  portion  of  the  land  by  inheritance  from  their 
deceased  brother  if  the  act  last  mentioned  was  a  valid  law.  The 
court  stated  that  it  is  a  general  rule  of  the  common  law  that 

134  1  Starr  &  Curtis'  Ann.  Stats.,  c.  135  111.  Laws,  p.  5;   3  Starr  &  Cur- 

6,  p.   264.  tis'  Ann.   Stats.,   c.   6,  p.   19. 


§    245]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES.  284 

the  title  to  real  property  must  be  acquired  and  transmitted 
according  to  the  lex  rei  sitae,  and  that  the  right  of  aliens  to  hold 
land  within  the  limits  of  the  several  states  is  a  matter  of  state 
regulation,  but  "it  is  also  true  that  the  state  law  must  give  way 
if  it  conflicts  with  any  existing  treaty  between  the  government 
of  the  United  States  and  the  Government  of  the  country  of  which 
such  foreigner  is  a  subject  or  citizen."136  While  the  court 
recognized  this  rule,  it  declared  that  "the  treaty  which  will  sus- 
pend or  override  the  statute  of  a  state  must  be  a  treaty  between 
the  United  States  and  the  government  of  the  particular  country 
of  which  the  alien  claiming  to  be  relieved  of  the  disability  is  a 
citizen  or  subject.  A  treaty  with  some  other  country,  of  which 
such  alien  is  not  a  citizen  or  subject,  cannot  have  the  effect  of 
removing  the  disability  complained  of."  The  court  then  went 
into  the  question  whether  a  treaty  actually  existed,  giving  aliens 
the  right  to  inherit.  It  appeared  that  several  treaties  referred  to 
by  the  nonresident  heirs  contained  a  clause  allowing  nonresident 
heirs  a  reasonable  time  to  sell  real  estate  and  withdraw  the  pro- 
ceeds, but  there  was  no  treaty  with  Baden  containing  a  similar 
clause.  It  was  also  contended  that  the  treaty  concluded  on  De- 
cember 11,  1871,  between  the  United  States  and  the  German  Em- 
pire, into  which  Baden  had  been  incorporated,  contained  a  stipula- 
tion which  should  be  construed  so  as  to  remove  the  disability 
imposed  upon  the  nonresident  heirs.  The  court  held,  however, 
that  this  last-named  treaty  could  not  be  so  construed,  and  on  the 
ground,  solely,  that  there  was  no  treaty  in  existence  between  the 
United  States  and  the  grand  duchy  of  Baden  or  the  German  Em- 
pire, decided  that  the  disabilities  imposed  by  the  statute  upon 
the  nonresident  aliens  were  not  removed  by  any  treaty  stipula- 
tions.137 

§  245.    Statute  not  unconstitutional  as  special  law. — It  may  be 

observed,  in  passing,  that  the  statute  in  question  was  held  not 
to  be  in  violation  of  any  constitutional  provision  against  local  or 
special  laws  changing  descent.138  While  in  the  case  just  cited 

136  Wunderle  v.   Wunderle,   144   111.  convention  concluded  between  Bavaria 
40,  33  N.  E.  195,  19  L.  E.  A.  84.  and  the  United  States  on  September 

137  Wunderle   v.   Wunderle,   144   111.  12,  1853.     In  re  Thomas,  12  Blatchf. 
40,   33   N.   E.   195,   19  L.   E.   A.   84.  370,  Fed.  Gas.  No.  13,887. 

The   absorption   of   Bavaria   into   the  13S  Wunderle  v.   Wunderle,   144  111. 

German  Empire  did  not  abrogate  the       40,  33  N.  E.  195,  19  L.  E.  A.  84. 


285  CONSTITUTION   OF    WORDS.  [§    246 

nonresident  aliens  claiming  to  take  lands  by  descent  in  Illinois 
were  held  to  be  incapable  of  inheriting  under  the  statute,  because 
there  was  no  treaty  between  their  country  and  ours  allowing  them 
to  acquire  or  hold  lands,  yet  in  another  case  the  question  was 
presented,  where  a  treaty  existed  between  the  United  States  and 
the  Hanseatic  Republic  of  Bremen,  of  which  the  claimants  were 
citizens.  In  this  case  the  court  held  that  the  treaty  superseded 
the  statute,  and  that  in  accordance  with  its  provisions  the  non- 
resident alien  heirs  were  entitled  to  sell  the  lands  in  Illinois  which 
they  would  inherit  except  for  alienage,  and  to  withdraw  the  pro- 
ceeds at  any  time  within  three  years  from  the  death  of  the  an- 
cestor. The  interest  in  the  land  that  vested  in  the  alien  heirs  by 
the  grant  of  the  right  during  a  term  of  years  to  sell  the  land  and 
withdraw  the  proceeds  is  a  fee  which  may  be  terminated  by  a 
failure  to  exercise  the  power  within  the  time  specified,  and  such 
ownership  of  a  terminable  fee  carries  with  it  the  right  to  a  par- 
tition.139 

§  246.  Construction  of  words. — In  a  case  in  this  state  the  court 
was  called  upon  to  construe  the  word  "biens"  in  a  treaty  written 
in  French,  which  in  the  English  version  appeared  as  "  effects. " 
Article  6  of  the  treaty  of  April  3,  1783,  between  the  United  States 
and  Sweden,  as  revised  in  article  17  of  the  treaty  of  July  4, 
1827,  provided  that  the  subjects  of  the  two  contracting  parties 
might  "dispose  of  their  goods  and  effects"  by  donation  or  other- 

139  Schultze  v.  Schultze,  144  111.  290,  selves  or  others  acting  for  them,  and 
36  Am.  St.  Kep.  432,  33  N.  E.  201,  dispose  of  the  same  at  their  will, 
19  L.  E.  A.  20.  Article  7  of  the  paying  such  dues  only  as  the  in- 
treaty  which  was  concluded  between  habitants  of  the  country  wherein  such 
the  United  States  and  the  Hanseatic  goods  are  shall  be  subject  to  pay  in 
Republic  of  Bremen  on  December  20,  like  cases;  and  if,  in  the  case  of  real 
1827,  is  as  follows:  "The  citizens  of  estate,  the  said  heirs  would  be  pre- 
each  of  the  contracting  parties  shall  vented  from  entering  into  the  posses- 
have  power  to  dispose  of  their  per-  sion  of  the  inheritance  on  account  of 
sonal  goods  within  the  jurisdiction  their  character  of  aliens,  there  shall 
of  the  other  by  sale,  donation,  testa-  be  granted  to  them  the  term  of  three 
ment,  or  otherwise;  and  their  repre-  years  to  dispose  of  the  same  as  they 
sentatives,  being  citizens  of  the  other  may  think  proper,  and  to  withdraw 
party,  shall  succeed  to  their  said  the  proceeds  without  molestation  on 
personal  goods,  whether  by  testament  the  part  of  the  government  of  the 
or  db  intestato,  and  they  may  take  respective  states/' 
possession  thereof,  either  by  them- 


§  246]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES. 


286 


wise.  In  the  French  draft  of  the  treaty  the  word  "effects"  was 
represented  by  the  word  "biens."  This  word  in  the  civil  law 
includes  both  immovables  and  movables.  The  court  decided  that 
this  word,  when  construed  with  the  words  "heirs,"  "succession" 
and  "inheritances,"  comprehended  real  as  well  as  personal  prop- 
erty, and,  therefore,  that  an  alien  resident  of  Sweden  might, 
notwithstanding  the  statute  forbidding  it,  inherit  land  from  a 
resident  citizen  of  Illinois.140 


w  Adams  v.  Akerlun-d,  168  111.  632, 
48  N.  E.  454.  On  the  point  of  con- 
struction Mr.  Justice  Magruder,  who 
delivered  the  opinion  of  the  court, 
said :  ' '  The  French  words,  appearing 
in  the  French  copies  of  the  treaty, 
which  correspond  to  the  words  'goods 
and  effects, '  are  '  fonds  et  biens. ' 

* '  Appellees  claim  that  the  French 
word  'biens'  means  real  as  well  as 
personal  property.  They  introduced  a 
witness  upon  the  stand,  who  was  a 
native  of  France,  and  educated  in 
that  country,  to  prove  that  such  was 
the  meaning  of  the  word.  This  tes- 
timony, if  it  was  not  actually  im- 
proper, was  not  material.  United 
States  v.  Turner,  11  How.  663,  13 
L.  ed.  857.  Bouvier,  in  his  Law  Dic- 
tionary, defines  the  French  word 
'biens'  to  mean:  'Property  of  every 
description,  except  estates  of  free- 
hold and  inheritance.'  But  this  is 
evidently  the  strict  meaning  which 
it  has  as  it  is  defined  in  the  common- 
law  writers,  because  immediately  after 
this  definition  he  adds  these  words: 
'In  the  French  law  this  term  includes 
all  kinds  of  property,  real  and  per- 
sonal. Biens  are  divided  into  biens 
muebles,  movable  property,  and  biens 
immuebles,  immovable  property. '  It 
would  thus  appear  that  the  word,  as 
used  in  the  original  treaty,  in  the 
French  language,  has  a  meaning  in 
the  civil  law,  which  includes  both  real 
and  personal  property.  In  a  note  to 
section  13  of  Story  on  Conflict  of 


Laws  (8th  ed.),  it  is  said:  'The 
term  ' '  biens ' '  in  the  sense  of  civil- 
ians and  continental  jurists,  compre- 
hends not  merely  goods  and  chat- 
tels, as  in  the  common  law,  but  real 
estate. '  It  is  also  said  in  a  note  to 
section  146  of  the  same  work:  'For- 
eign jurists,  commonly,  in  the  term 
' '  biens, ' '  include  all  sorts  of  prop- 
erty, movable  and  immovable,  in  their 
discussions  on  this  subject. '  If, 
therefore,  we  look  to  the  treaty 
as  published  in  the  French  language, 
the  term  there  used  includes  real  es- 
tate as  well  as  personal  property. 

' '  Consul  for  appellants  contend 
that  the  French  expression  'fonds  et 
biens,'  is  correctly  translated  as 
•  goods  and  effects. '  It  is  insisted 
that  the  English  copy  of  the  treaty 
^  whether  the  treaty  was  originally 
negotiated  in  English  as  well  as 
French,  or  whether  an  English  trans' 
lation  was  made  of  it  after  its  orig- 
inal  negotiation)  is  an  official  prom- 
ulgation of  the  treaty  in  the  Eng- 
lish fcmguage,  in  view  of  the  fact 
that  it  appears  in  publications  and 
editions  of  the  United  States  Stat- 
utes at  Large,  as  authorized  by  Con- 
gress. Whether  this  view  is  correct 
or  not,  it  may  be  admitted  for  the 
purposes  of  this  .case  that  the  words 
'  goods  and  effects '  are  a  correct 
translation  of  the  French  expression 
'  fonds  et  biens. '  The  question  then 
arises  as  to  the  meaning  of  the  word 
'effects.'  It  cannot  be  doubted  that 


287 


ALLOWANCE  OF  TIME  TO  SELL. 


[§  247 


§  247.  Allowance  of  time  to  sell.— The  treaty  with  Wiirttem- 
berg  of  December,  1844,  provided  that  when  an  alien  shall  in- 
herit any  real  property  he  shall  be  allowed  two  years  in  which 


in  certain  connections  the  word  'ef- 
fects' sometimes  refers  to  both  real 
and  personal  property.  It  is  true 
that  as  a  general  thing  the  word 
'  effects, '  when  used  in  connection 
with  the  word  l  goods, '  means  per- 
sonal property,  and  not  real  property. 
But  this  is  not  its  correct  meaning 
where  a  contrary  intention  .  appears 
from  the  terms  of  the  instrument  in 
which  the  word  occurs.  The  word 
'effects'  is  'a  very  general  term, 
used  to  denote  whatever  a  man  has 
that  can  effect,  produce,  or  bring 
forth  money  by  sale. '  Am.  &  Eng. 
Ency.  of  Law,  p.  174.  Bouvier  de- 
fines the  word  '  effects '  as  follows : 
'Property  or  worldly  substance.  As 
thus  used  it  denotes  property  in  a 
more  extensive  sense  than  goods.  2 
Bl.  Comm.  284.  •  Indeed,  the  word 
may  be  used  to  embrace  every  kind 
of  property,  real  and  personal,  in-  - 
eluding  things  in  action.'  If  the  ex- 
pression here,  instead  of  being  'goods 
and  effects'  was  ' goods  and  other 
effects,'  we  should  be  inclined  to  ap- 
ply the  rule  of  construction  that  gen- 
eral and  specific  words,  which  are 
capable  of  an  analogous  meaning,  be- 
ing associated  together,  take  color 
rrom  each  other,  so  that  the  general 
words  are  restricted  to  a  sense  analo- 
gous to  the  less  general.  Misch  v. 
Russell,  136  111.  22,  26  N.  E.  528,  12 
L.  E.  A.  125;  First  Nat.  Bank  v. 
Adam,  138  111.  483,  28  N.  E.  955. 
Thus,  in  the  case  of  Bank  v.  Adam, 
supra,  where  the  words  used  were  'all 
goods,  chattels  or  other  property,'  it 
was  held  that  the  general  words  'or 
other  property'  would  be  restricted  to 
a  meaning  analogous  to  the  meaning 


of  the  words  'goods  and  chattels,' 
and  consequently  would  not  embrace 
such  property  as  fixtures  or  chattels 
x-eal,  partaking  more  of  the  nature 
of  realty  than  personalty,  So,  here, 
if  the  expression  were  'goods  and 
other  effects,7  the  words  'other  ef- 
fects' would  be  restricted  to  a  mean- 
ing analogous  to  the  meaning  of  the 
word  'goods,'  and  would  not  embrace 
real  property.  But,  as  the  word 
'other'  is  not  used,  there  is  no  oc- 
casion for  the  application  of  the 
maxim,  '  ejusdem  generis.'  Even, 
however,  if  this  maxim  were  applica- 
ble to  the  expression  'goods  and  ef- 
fects,' standing  alone,  yet  it  is  not 
applicable  to  the  word  'effects'  as 
here  used,  when  considered  in  con- 
nection with  other  expressions  appear- 
ing in  article  6,  as  above  quoted.  In 
interpreting  wills,  it  is  well  settled 
that  the  word  'effects'  will  be  con- 
strued as  including  land  where  it  can 
be  collected  from  other  parts  of  the 
will  that  such  was  the  testator's  in- 
tention. In  other  words,  where  the 
context  of  a  will  shows  that  it  was 
the  intention  of  the  testator  to  dis- 
pose of  his  realty,  the  courts  have 
held  that  the  word  'effects'  is  suffi- 
cient to  include  the  real  estate.  6  Am. 
&  Eng.  Ency.  of  Law,  pp.  176,  177; 
Smyth  v.  Smyth,  8  Ch.  Div.  561 ;  Page, 
v.  Foust,  89  N".  C.  447.  This  being 
a  proper  rule  of  construction  in  the 
case  of  wills,  it  is  equally  proper  as 
applied  to  public  treaties. 

' '  Where  treaties  concern  the  rights 
of  individuals,  it  is  frequently  neces- 
sary for  the  courts  to  ascertain,  by 
construction,  the  meaning  intended  to 
be  conveyed  by  the  terms  used.  Wil- 


247] 


TREATIES.    STATE    CONSTITUTIONS    AND    STATUTES. 


288 


to  sell  the  same,  "which  time  may  be  reasonably  prolonged  ac- 
cording to  the  circumstances."  It  was  held  that  the  courts 
should  give  effect  to  the  words  quoted,  and  should  grant  such 
time  as  would  be  reasonable.  Hence,  where  alien  heirs  to  real 


son  v.  Wall,  6  Wall.  83,  18  L.  ed. 
727;  United  States  v.  Kauscher,  119 
U.  S.  407,  7  Sup.  Ct.  Eep.  234,  30  L. 
ed.  425;  Head  Money  Cases,  112  II. 
S.  580,  5  Sup.  Ct.  Rep.  247,  28  L. 
ed.  798.  In  thus  giving  construction 
to  the  language  of  treaties,  the  courts 
will  adopt  the  same  general  rules 
which  are  applicable  in  the  construc- 
tion of  statutes,  contracts,  and  written 
instruments  generally,  in  order  to  ef- 
fect the  purpose  and  intention  of  the 
makers.  26  Am.  &  Eng.  Ency.  of 
Law,  p.  555.  Moreover,  it  is  another 
well-settled  rule,  laid  down  by  the 
supreme  court  of  the  United  States, 
that  'where  a  treaty  admits  of  two 
constructions — one  restricted  as  to  the 
rights  that  may  be  claimed  under  it, 
and  the  other  liberal — the  latter  is  to 
be  preferred.'  Hauenstein  v.  Lyn- 
ham,  100  U.  S.  483,  25  L.  ed.  628; 
Schultze  v.  Schultze,  144  111.  290,  36 
Am.  St.  Rep.  432,  33  N.  E.  201,  19 
(L.  R.  A.  20.  When,  therefore,  we 
consider  the  meaning  of  the  words 
'goods  and  effects'  in  connection  with 
the  rest  of  article  6,  as  above  quoted, 
we  find  such  expressions  therein  as  the 
following:  'Their  heirs,  in  whatever 
place  they  shall  reside,  shall  receive 
the  succession  even  db  intestato,'  etc., 
and  '  these  inheritances  ....  shall  be 
exempted  from  all  duty,'  etc.  The 
words  'heirs,'  'succession'  and  'in- 
heritances, '  as  here  used,  are  very  sig- 
nificant words  in  determining  the 
meaning  to  be  given  to  the  word 
'effects.'  An  heir  is  'one  who,  upon 
the  death  of  another,  acquires  or  suc- 
ceeds to  his  estate  by  right  of  blood 
and  by  operation  of  law;  the  person 


who  takes  an  estate  of  lands  or  tene- 
ments by  descent  from  another 

In  the  Roman  law  and  in  the  modern 
civil  law,  ' '  haeres  "  or  "  heir, ' '  has  a 
more  extended  significance  than  in 
the  common  law.  The  term  is  applied 
to  all  persons  entitled  to  succeed  to 
the  estate  of  one  deceased,  whether 
by  act  of  the  party  or  by  operation 
of  law,  and  whether  the  property  be 
real  or  personal  in  its  nature. '  9  Am. 
&  Eng.  Ency.  of  Law,  p.  357.  At 
common  law,  chattels  did  not  descend 
by  inheritance,  except  in  the  instances 
in  which  they  came  under  the  descrip- 
tion of  '  heirlooms. '  Bouvier  defines 
the  term  'inheritance'  as  follows:  'A 
perpetuity  in  lands  to  a  man  and  his 
heirs;  the  right  to  succeed  to  the 
estate  of  a  person  Vho  dies  intestate. 
The  term  is  applied  to  lands.  The 
property  which  is  inherited  is  called 
an  ' '  inheritance. ' '  The  term  ' '  in- 
heritance" includes  not  only  lands 
and  tenements  which  have  been  ac- 
quired by  descent,  but  every  fee  sim- 
ple or  fee  tail  which  a  person  has  ac- 
quired by  purchase  may  be  said  to 
be  an  inheritance,  because  the  pur- 
chaser 's  heirs  may  inherit  it. '  He 
also  says  that  in  the  civil  law  the 
term  means  'the  succession  to  all  the 
rights  of  the  deceased.  It  is  of  two 
kinds — that  which  arises  by  testament, 
when  the  testator  gives  his  property 
to  a  particular  person;  and  that  which 
arises  by  operation  of  law,  which  is 
called  succession  db  intestato. '  '  In- 
heritance' has  also  been  defined  to  be 
'an  estate  which  descends  or  may 
descend  to  the  heir  upon  the  death  of 
the  ancestor.  Estates  of  freehold  are 


289 


ALLOWANCE  OF  TIME  TO  SELL. 


[§  247 


estate  showed  that  they  were  unable  to  learn  the  names  of  the 
other  heirs  until  proof  of  heirship  was  made  in  the  probate  court, 
about  two  years  after  the  death  of  the  intestate,  and  showed 
also  that  they  had  endeavored  to  obtain  the  assent  of  other 
heirs  to  agree  to  a  sale  of  the  property,  but  were  unsuccessful, 
and  that  without  such  division  they  had  been  unable  to  sell,  it 
was  decided  that  a  sufficient  showing  had  been  made  to  entitle 
the  claimants  to  sell  their  interest,  notwithstanding  the  lapse  of 
the  two  years  mentioned  in  the  treaty  since  the  death  of  the 
intestate.141 


estates  of  inheritance,  absolute  or  lim- 
ited.' 2  Bl.  Co  mm.  104,  120;  10  Am. 
&  Eng.  Ency.  of  Law,  p.  777.  The 
word  'inheritance'  in  its  usual  legal 
acceptation,  applies  to  lands  descend- 
ed. In  its  popular  acceptation  it  in- 
cludes all  the  methods  by  which  a 
child  or  relation  takes  property  from 
another  at  his  death,  except  by  devise, 
and  includes  as  well  succession  as 
descent.  Horner  v.  Webster,  33  N.  J. 
L.  413.  'Succession,'  in  the  civil 
law,  denotes  the  transmission  of  the 
rights  and  obligations  of  a  deceased 
person  to  his  heir  or  heirs.  The  word 
'  succession '  is  often  used  synony- 
mously with  the  word  '  descent. ' 
Descent  is  hereditary  succession  to  an 
estate  in  realty.  'Descent'  usually 
applies  to  the  devolution  of  real 
estate.  The  word  '  inheritance '  is 
also  often  used  synonymously  with 
'descent'  and  refers  to  the  devolution 
of  real  property.  In  its  popular  ac- 
ceptation, however,  the  word  'inher- 
itance' includes  the  devolution  of  both 
real  and  personal  property,  and  is  co- 
extensive in  meaning  with  the  word 
'succession.'  24  Am.  &  Eng.  Ency.  of 
Law,  p.  345.  Succession,  in  the  civil 
law,  includes  immovable  as  well  as 
movable  estates.  Thus,  in  article  6 
of  the  treaty  we  find  the  words  'heirs' 
and  '  inheritances '  used.  These  words, 
in  their  strict  common-law  significa- 
Treaties — 19 


tion,  refer  only  to  the  descent  or 
devolution  of  real  property;  but  in 
their  broader  signification,  they  in- 
clude both  real  and  personal  prop- 
erty. We  also  find  the  word  'suc- 
cession' used,  which  refers  as  well  to 
the  descent  of  real  as  of  personal 
property.  It  is  evident,  therefore, 
that  the  terms  of  the  treaty  were  in- 
tended to  include  real  estate  as  well 
as  personalty,  and  that  the  word  'ef- 
fects' was  intended  to  have  the 
broader  meaning  which  includes  both 
land  and  personalty. ' '  Adams  v. 
Akerlund,  168  111.  632,  48  N.  E.  454. 
141  Scharpff  v.  Schmidt,  172  111.  255, 
50  N.  E.  182.  It  was  contended  by 
counsel  that  it  could  not  be  presumed 
by  the  contracting  parties  to  the 
treaty  that  the  time  for  a  transfer  by 
an  alien  should  be  prolonged,  except 
by  an  act  of  the  same  department 
of  the  government;  that  is  to  say,  by 
the  legislative,  which  established  the 
limitation.  The  court  disposed  of  the 
contention  of  counsel  by  saying, 
through  Mr.  Justice  Carter,  who  de- 
livered the  opinion  of  the  court: 
"The  meaning  of  counsel  is  not  al- 
together clear,  but  it  is  presumed  that 
their  contention  is  that  the  two  gov- 
ernments making  the  treaty,  and  which 
provided  for  a  reasonable  prolonga- 
tion of  the  term  (two  years)  accord- 
ing to  circumstances,  intended  that 


§    248]          TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES. 


290 


§  248.  In  Iowa. — In  Iowa  the  statute  prohibited  nonresident 
aliens  "from  acquiring  title  to  or  taking  or  holding  any  lands 
or  real  estate  in  this  state  by  descent,  devise  or  purchase,"  with 
certain  exceptions  not  necessary  to  be  noticed.  A  nonresident 
alien  who  sought  to  acquire  an  interest  as  heir  in  real  estate  in 
Iowa  was  disqualified  under  the  provisions  of  the  statute  men- 
tioned. A  treaty  existed  between  the  United  States  and  Bavaria, 
of  which  country  the  alien  was  a  citizen,  and  the  question  was, 


the  determination  as  to  what  circum- 
stances would  require  a  prolongation 
and  would  be  a  reasonable  prolonga- 
tion under  such  circumstances  should 
rest  in  the  legislature  of  the  state 
where  the  lands  should  have  their 
location,  for  it  was  not,  of  course, 
intended  to  be  asserted  that  the  legis- 
lative department  'established  the 
limitations  contained  in  the  treaty.' 
Nor  do  we  think  it  would  be  reason- 
able to  claim  that  the  treaty  means 
that  the  question  of  such  reasonable 
prolongation  of  time  should  in  each 
particular  case  be  made  the  subject 
of  negotiation  and  treaty  by  the  gov- 
ernments making  the  treaty  in  the 
first  instance,  nor  do  we  understand 
counsel  to  so  contend;  but  they  do 
contend  that,  in  the  absence  of  any 
prolongation  of  time  by  the  legis- 
lature, the  limitation  of  two  years 
fixed  by  the  treaty  must  govern,  and 
that  when  that  time  passed  the  ap- 
pellants, being  aliens,  no  longer  had 
any  interests  in  the  property.  Counsel 
do  not  point  out  any  way  in  which 
the  general  assembly  could  have  pro- 
longed the  limitation  of  two  years 
upon  the  application  of  appellants. 
It  may  well  be  doubted  whether  the 
power  to  pass  a  special  law  on  the 
subject  exists  under  the  constitution, 
and,  if  it  does,  it  would  be  but  a 
precarious  right  guaranteed  by  this 
treaty  to  make  its  enjoyment  depend 
on  the  action  of  the  legislature,  which 


might  not  meet  until  the  right  was 
barred.  If  it  be  said  that  the  legis- 
lature could  have  passed  a  general 
law  on  the  subject,  conforming  to  the 
treaty,  we  are  unable  to  see  what 
additional  force  would  thereby  have 
been  given  to  the  treaty.  As  it  stands, 
the  treaty  is  the  law  of  the  land, 
superior  to  any  law  which  the  legis- 
lature could  pass,  and  seems  to  be 
as  explicit  as  any  general  law  could 
be  reasonably  framed.  It  would  be 
but  an  idle  ceremony  for  the  legis- 
lature to  re-enact  the  treaty,  and  we 
find  nothing  in  the  language  of  the 
treaty  itself  which  would  seem  to 
make  its  application  to  any  particular 
case  depend  on  the  action  of  the  legis- 
lature. Like  any  other  law,  its  con- 
struction and  application  to  particular 
cases  are  questions  for  the  courts. 
The  clause  in  controversy,  'which 
term  may  be  reasonably  prolonged, 
according  to  circumstances/  means 
nothing  more  than  that  in  cases  where 
the  circumstances  are  such  as  to  make 
it  reasonable  that  such  aliens,  in  order 
to  preserve  their  rights,  should  have 
further  time,  in  addition  to  the  term 
of  two  years,  in  which  to  sell  their 
interest  in  the  lands,  such  further  time 
as  may  be  reasonable  under  the  cir- 
cumstances shall  be  allowed.  Any 
other  construction  would,  for  all  prac- 
tical purposes,  render  this  provision 
of  the  treaty  nugatory,  while,  like  any 
other  instrument,  it  should  be  con- 


291  IN  IOWA.  [§  248 

What  effect  did  the  treaty  have  on  the  statute  ?  It  was  contended 
that  the  states  alone  have  the  right  to  regulate,  by  legislation, 
descents  and  conveyances  of  real  estate  within  their  limits,  and 
that  the  federal  government  had  no  power  to  interfere  by  a  treaty 
with  the  right  of  the  state  to  legislate  as  to  the  descent  of  prop- 
erty upon  the  death  of  its  citizens.  It  was  also  urged  that  treaties 
made  without  authority  are  invalid,  and  that  as  the  treaty  was 
in  conflict  with  the  laws  of  Iowa,  it  had  no  force  or  effect.  But 
Mr.  Justice  Given,  delivering  the  opinion  of  the  court,  responded : 
"It  may  be  conceded  that  the  states  alone  have  such  power; 
that  they  alone  may  declare  to  what  kindred  the  estate  of  per- 
sons dying  intestate  shall  descend.  It  must  also  be  conceded  that 
the  federal  government  alone  has  power  to  treat  with  other  gov- 
ernments as  to  rights  of  the  citizens  of  each  within  the  territory 
of  the  other.  This  treaty  does  not  attempt  to  regulate  descent 
of  real  property  in  Iowa.  It  does  not  declare  that,  when  a  son 
or  daughter  dies  without  issue,  the  estate  shall  go  to  the  parents. 
It  is  left  to  the  state,  and  Iowa  has  so  provided.  This  treaty 
simply  declares  that,  if  that  parent  is  disqualified  by  alienage, 
as  to  the  citizens  of  these  two  governments  this  disqualification 
is  removed. ' ' 142 

strued    to    give    it    practical    effect,  of  the   judiciary  when  a   case   arises 

rather    than    to    make    it    ineffectual.  between  individuals   (Wilson  v.  Wall, 

The  view  we  have  taken  is  strength-  6  Wall.  83,  18  L.  ed.  727)." 

ened  somewhat  by  the  fifth  article  of  142  Opel  v.  Shoup,  100  Iowa,  407,  69 

the    treaty,    which   provided   that    'if  N.   W.   560,   37  L.   E.   A.   583.     The 

any  dispute  should  arise  between  dif-  treaty  referred  to  was  concluded  and 

ferent   claimants   to   the   same  inher-  adopted    between    the    United    States 

itance,   they  shall  be   decided,   in  the  and    Bavaria    on    January    21,    1845r 

last  resort,  according  to  the  laws  and  and    the    clauses    bearing    upon    the 

by   the   judges   of   the   country  where  rights   of  alien   to   inherit  land  were 

the  property  is  situated. '    Then,  again,  the  following : 

the  rule  is,  that  'where  a  treaty  ad-  "Article    1.     Every   kind   of   droit 

mits  of  two  constructions,  one  restric-  d'aubaine,  droit  de  retraite,  and  droit 

tive    as    to    the    rights    that    may    be  de    detraction   or   tax   on   emigration, 

claimed  under  it,   and  the  other  lib-  is  hereby,  and  shall  remain,  abolished 

eral,  the  latter  is  preferred'   (Hauen-  between  the  two  contracting  parties, 

stein  v.   Lynham,    100   U.   S.   483,   25  their    states,    citizens,    and    subjects, 

L.  ed.  628;   Schultze  v.  Schultze,  144  respectively. 

111.  290,  36  Am.  St.  Kep.  432,  33  N.  "Article   2.     Where,   on   the   death 

E.  201,  19  L.  R.  A.  20),  and  construe-  of  any  person  holding  real  property 

tion  of  treaties  is  the  peculiar  province  within   the   territories    of   one   party, 


§§  249,  250]   TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.   292 

§  249.  Goods  not  including  lands.— In  a  later  case,  the  court 
construed  the  treaty  between  Sweden  and  the  United  States  con- 
cluded in  1783.  Article  6  of  this  treaty,  under  which  the  claim 
of  the  alien  was  made,  declared:  "The  subjects  of  the  contracting 
parties  in  the  respective  states  may  freely  dispose  of  their  goods 
and  effects,  either  by  testament,  donation,  or  otherwise  in  favor 
of  such  persons  as  they  think  proper;  and  their  heirs,  in  what- 
ever place  they  shall  reside,  shall  receive  the  succession  even  ab  in- 
testato,  either  in  person  or  by  their  attorney,  without  having  oc- 
casion to  take  out  letters  of  naturalization."  The  court  said, 
conceding  that  this  treaty  was  in  force — which  matter  the  court 
did  not  determine — it  did  not,  in  its  opinion,  apply  to  lands.  The 
court  quoted  the  definition  of  "goods"  from  Webster  and  de- 
cided that  "goods  and  effects  had  never  been  held  to  include 
real  estate. ' ' 143 

§  250.  Treaty  contemplating  one  step  of  transmission. — In 
another  case  in  Iowa,  the  rule  was  recognized  that  a  treaty  pro- 
viding that  aliens  may  inherit  land  will  control,  although  it  is 
in  conflict  with  the  laws  of  the  state.  It  was  contended  in  this 
case  that  the  treaty  contemplated  but  one  step  of  transmission, 
and  that  the  treaty  was  intended  to  apply  only  to  persons  resid- 
es uch  real  property  would,  by  the  laws  may  take  possession  thereof,  either  by 
of  the  land,  descend  on  a  citizen  or  themselves  or  by  others  acting  for 
subject  of  the  other,  were  he  not  dis-  them,  and  dispose  of  the  same  at 
qualified  by  alienage,  such  citizen  or  their  pleasure,  paying  such  duties 
subject  shall  be  allowed  a  term  of  two  only  as  the  inhabitants  of  the  country 
years  to  sell  the  same,  which  term  where  the  said  property  lies  shall  be 
may  be  reasonably  prolonged  accord-  liable  to  pay  in  like  cases." 
ing  to  circumstances,  and  to  withdraw  143  Meier  v.  JLee,  106  Iowa,  303,  76 

the  proceeds  thereof,  without  molesta-  N.  W.  712.  The  language  of  the 
tion,  and  exempt  from  all  duties  of  treaty  construed  by  the  court  was  as 
detraction.  follows:  "The  subjects  of  the  con- 

"  Article  3.  The  citizens  or  sub-  tracting  parties  may  freely  dispose  of 
jects  of  each  of  the  contracting  their  goods  and  effects,  either  by 
parties  shall  have  power  to  dispose  of  testament,  donation  or  otherwise,  in 
their  (real  and)  personal  property  favor  of  such  persons  as  they  think 
within  the  states  of  the  other,  by  proper;  and  their  heirs,  in  whatever 
their  heirs,  legatees,  and  donees,  being  place  they  shall  reside,  shall  receive 
testament,  donation,  or  otherwise;  and  the  succession  even  ab  intestate,  either 
citizens  or  subjects  of  the  other  con-  in  person  or  by  their  attorney  without 
tracting  party,  shall  succeed  to  their  having  occasion  to  take  out  letters  of 
said  (real  and)  personal  property,  and  naturalization." 


TREATY    CONTEMPLATING    ONE    STEP    OF    TRANSMISSION.       [§    250 


in^  in  this  country  so  far  as  land  in  this  country  is  concerned. 
The  court  held,  however,  that  property  devised  to  a  citizen  of  the 
foreign  country  with  which  the  treaty  was  made  descends  on  the 
death  of  such  citizen  to  his  heirs,  who  were  also  subjects  of  such 
foreign  country.144 

The  citizens  of  Waldeck  became  the  subjects  of  Prussia  under 
the  terms  of  the  treaty  between  the  King  of  Prussia  and  the  Prince 
of  Waldeck,  and  therefore  are  affected  by  the  treaty  between 
the  United  States  and  Prussia  providing  for  the  rights  of  in- 
heritance of  the  two  countries.145 


14  Doehrel  v.  Hillmer,  102  Iowa, 
169,  71  N.  W.  204.  Under  the  laws 
of  Iowa  nonresident  aliens  cannot  ac- 
quire land.  Furenes  v.  Mickelson,  86 
Iowa,  508,  53  N.  W.  416;  Burrow  v. 
Burrow,  98  Iowa,  400,  67  N.  W.  287. 
As  to  the  construction  of  the  treaty, 
Mr.  Justice  Ladd,  delivering  the 
opinion  of  the  court,  said:  "But  the 
appellants  contend  that  the  treaty  is 
intended  to  apply  only  to  persons 
residing  in  this  country,  so  far  as 
land  in  this  country  is  concerned ; 
further,  that  the  treaty  contemplates 
but  one  step  of  transmission.  It  is 
held  in  the  case  of  Hauenstein  v. 
Lynham,  100  U.  S.  483,  25  L.  ed.  628, 
that  'where  a  treaty  admits  of  two 
constructions,  one  restrictive  as  to  the 
rights  that  may  be  claimed  under  it, 
and  the  other  liberal,  the  latter  is  to 
be  preferred. '  The  wording  of  the 
article  quoted  from  the  treaty  seems 
.to  preclude  the  construction  contended 
for.  The  evident  purpose  was  to  so 
protect  the  citizens  and  subjects  of 
both  countries  in  their  property  inter- 
ests that  alienage  would  not  affect  the 
right  of  inheritance.  The  citizenship 
or  residence  of  the  person  upon  the 
death  of  whom  real  estate  descends 
is  not  mentioned.  The  property,  and 
not  from  whence  it  comes,  is  the  im- 
portant consideration.  'And  where 
upon  the  death  of  any  person  holding 


real  estate  within  the  territories  of 
one  party '  can  only  be  given  one  in- 
telligent construction — that  of  the 
plain  import  of  the  language  em- 
ployed. By  the  terms  of  the  treaty 
considered  in  Schultze  v.  Schultze, 
supra,  relied  upon  by  appellants,  in- 
heritance is  expressly  limited  to  the 
heirs  and  devisees  of  one  country  from 
subjects  or  citizens  of  the  other. 
In  Opel  v.  Shoup,  supra,  this  court 
considered  a  treaty  between  the  United 
States  and  the  King  of  Bavaria,  a 
part  of  the  second  article  of  which  is 
identical  with  that  involved  in  this 
case;  and  it  was  there  held  that  real 
property  inherited  by  a  subject  of  the 
King  of  Bavaria  from  her  daughter, 
a  citizen  of  this  country,  descended  to 
her  (the  mother's)  heirs,  who  were 
also  subjects  of  the  king.  Clearly, 
under  the  terms  of  the  treaty  with 
the  King  of  Prussia,  alienage  does  not 
affect  the  right  of  inheritance,  when 
the  heir  or  devisee  is  a  citizen  or  sub- 
ject of  the  country  of  the  decedent, 
and  this  is  not  limited  to  one  step  in 
transmission. ' '  Doehrel  v.  Hillmer  et 
ah,  102  Iowa,  169,  71  N.  W.  205. 

145  Wilcke  v.  Wilcke,  102  Iowa,  173, 
71  N.  W.  201.  On  this  point  Mr. 
Justice  Granger,  delivering  the  opin- 
ion of  the  court,  said:  "A  more  diffi- 
cult question  is  whether  the  treaty 
pleaded  as  existing  between  the 


§  251]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES. 


294 


§  251.  In  Kentucky. — In  Kentucky  the  court  announced  that 
it  was  a  well-known  principle  of  the  common  law  and  also  of 
the  law  of  that  state  that  lands  do  not  pass  from  or  to  an  alien 
by  descent,  but  that  upon  the  death  of  the  person  last  seised  with- 
out heirs,  who  are  capable  of  inheriting,  the  title  vests  in  the  com- 
monwealth without  office  found.  But  the  court  said,  in  a  case 


United  States  and  Prussia  takes  the 
claimants,  against  the  widow,  out  of 
the  provisions  of  our  law  prohibit- 
ing nonresident  aliens  from  acquir- 
ing property  in  this  state  by  descent. 
No  question  is  made  as  to  the  pro- 
hibition in  this  case,  unless  such  claim- 
ants are  relieved  from  the  operation 
of  the  law  by  the  terms  of  the  treaty 
pleaded.  Nor  is  there  any  question 
but  that,  if  the  plaintiff  and  the  other 
appellees  were  subjects  of  the  king 
of  Prussia  at  the  decease  of  Adam 
Wilcke,  the  treaty  operates  to  relieve 
them  from  the  prohibitions  of  the 
law.  We  are  to  determine,  as  a  ques- 
tion of  fact,  whether  the  province  of 
Waldeck  is  so  far  a  part  of  the  king- 
dom of  Prussia  that  citizens  of  Wal- 
deck are  subjects  of  the  King  of 
Prussia,  within  the  meaning  of  the 
treaty  between  the  United  States  and 
Prussia.  As  the  record  is  presented, 
we  are  to  determine  this  question  in 
the  light  of  history,  as  it  may  be 
aided  by  particular  evidence  intro- 
duced. The  basis  for  the  claim  that 
its  citizens  are  such  subjects  is  a 
treaty  between  Prussia  and  Waldeck 
relative  to  the  transfer  of  the  admin- 
istration of  Waldeck  to  Prussia.  The 
articles  of  treaty  appear  in  the  rec- 
ord, and  they  appear  as  made  by  'his 
majesty,  the  King  of  Prussia,  and  his 
serene  highness,  the  Prince  of  Wal- 
deck '  •  and  it  is  expressed  that  the 
parties  are  '  animated  by  the  wish 
of  facilitating  the  entry  of  the  prin- 
cipalities of  Waldeck  and  Pyrmont 
into  the  North  German  Confedera- 


tion.' The  articles  are  some  12  in 
number,  from  which  it  appears  that 
Prussia  undertakes  the  international 
administration  of  the  principality  of 
Waldeck,  exclusively,  except  in  cer- 
tain particulars,  which  seem  to  be 
mainly  of  ecclesiastical  and  charitable 
importance.  While  the  administration 
is  to  be  in  the  name  of  the  prince, 
a  governor  is  appointed  by  the  king, 
and  placed  at  the  head  of  the  admin- 
istration of  the  principality,  and  un- 
dertakes 'the  constitutional  responsi- 
bility of  the  government  of  the  coun- 
try.' Prussia  is  empowered  to  or- 
ganize the  judicial  and  administra- 
tive authorities  differently,  according 
to  her  judgment.  Prussia  is  to  re- 
ceive the  whole  of  the  services  of  the 
principality,  and  defray  all  expenses, 
except  some  pertaining  to  ecclesiasti- 
cal authority.  All  the  state  servants 
are  appointed  by  Prussia,  are  Prus- 
sian subjects,  and  take  the  oath  of 
allegiance  to  the  King.  The  repre- 
sentations of  the  country  abroad  is 
retained  by  the  prince,  but  it  is  ex- 
ercised under  the  responsibility  of 
the  governor,  who  is  appointed  by 
the  King.  It  is  to  be  said  that  the 
authority  reserved  to  the  prince  is  of 
slight  importance,  and  practically  di- 
vorced from  the  temporal  concerns 
of  government.  The  articles  speak  of 
Waldeck  both  as  a  principality  and  a 
state.  The  testimony  as  to  the  ap- 
plication of  the  treaty  to  government 
affairs  shows,  as  to  its  temporal  con- 
cerns generally,  that  the  province  is 
as  much  a  part  of  the  Prussian  king- 


295  LAPSE  OF   TIME  PRECLUDING   CLAIM.  [§    252 

in  which  the  right  of  aliens  to  inherit  was  involved,  that  the 
ninth  article  of  the  treaty  of  1794  between  the  United  States  and 
Great  Britain  provided  that  British  subjects  holding  lands  in  the 
United  States  should  continue  to  hold  them,  and  that  as  to  such 
lands  and  the  legal  remedies  incident  thereto  neither  they  nor 
their  heirs  should  be  regarded  as  aliens.  On  the  effect  of  the 
treaty  on  the  right  of  the  alien  to  hold,  the  court  said:  "It  has 
been  decided  that  the  treaty  protects  the  title,  whatever  it  is, 
and  gives  to  it  the  same  validity  as  if  in  the  hands  of  a  citizen. ' ' 146 

§  252.  Lapse  of  time  precluding  claim. — In  a  case  in  this  state 
it  was  admitted  that  the  judgment  of  the  lower  court  declaring 
a  widow  entitled  to  a  tract  of  land  could  not  be  disturbed,  un- 
less certain  other  kindred  could  claim  under  the  treaty  stipula- 
tion between  the  United  States  and  the  Swiss  Federation.  The 
court  conceded  that  the  treaty  was  paramount  to  the  state  law, 
but  held  that  the  claimants  were  precluded  from  the  interest 
claimed  by  them  by  the  lapse  of  time.  Under  the  law  of  Ken- 
tucky, all  rights  to  alien  heirs  were  refused  at  any  and  all  times ; 
"the  treaty,  however,  invests  them  with  an  interest  provided  it 
is  asserted  within  three  years  after  the  right  accrues;  or  rather, 
it  forbids  any  law  limiting  their  right  of  recovery  to  less  than 
three  years,  the  effect  of  which  is  to  permit  any  restriction  by 
state  legislation  against  such  recovery,  which  will  not  interfere 
with  the  right  for  that  period.  The  state  law  was,  therefore, 
so  affected  by  the  treaty  as  to  become  inoperative  for  a  period  of 
three  years — but  no  further — it  being  a  well-settled  rule  that 

dom   as   any  province   could   be   with  of  Waldeck  are  subjects  of  the  King 

any  slight  reservation  of  governmental  of  Prussia.     Prussian  authority  is  al- 

authority.     It  has  a  slight  representa-  most,  if  not  quite,  absolute,  as  to  its 

tion   in   the   federal   council   and   im-  military,  judicial,  and  administrative 

perial   diet,   or  at   least  it   did   have.  affairs.     Little,    if    anything    of    im- 

It  is  historically  said  that  its  military  portance  is  left,   except  its   religious 

affairs   are    all   in   the   hands    of   the  concerns.     These,    we    think,    are    the 

Prussian   government,   and  education,  controlling    facts    in    the    case;    and 

the    administration    of    justice,    and  our  conclusion  is  that,  because  of  the 

similar  matters  are  all  conducted  on  treaty  between  this  and  the  Prussian 

the  Prussian  model.     If  a  subject  is  government,      the     appellees     inherit 

one  who  is  governed  by  the  laws  of  from     Adam     Wilcke. ' '     Wilcke     v. 

a  sovereign  or  country,  and  owes  al-  Wilcke,  102  Iowa,  173,  71  N.  W.  203. 
legiance  thereto,  it  is  difficult  to  es-  14°  Trimbles  v.  Harrison,  1  B.  Mon. 

cape  the  conclusion  that  the  citizens  (40  Ky.)   140. 


§§    253,    254]       TREATIES,    STATE   CONSTITUTIONS   AND   STATUTES.       296 

when  a  state  law  is  deemed  unconstitutional,  because  opposed  to 
the  Constitution,  laws  and  treaties  of  the  federal  government,  it 
is  only  void  so  far  as  it  contravenes  the  Constitution,  laws  or 
treaties."147 

§  253.  In  Maryland. — In  Maryland  the  court  held  that  on  the 
19th  of  November,  1794,  when  the  treaty  between  Great  Britain 
and  the  United  States  was  made,  no  British  subject  could  hold 
land  in  that  state,  and  that  by  virtue  of  certain  acts  of  confisca- 
tion, the  state  was  in  possession  of  all  British  property  within  the 
limits  of  the  state,  and  decided  that  the  treaty  had  no  application. 
A  writ  of  error  was  sued  out  to  the  supreme  court  of  the  United 
States,  on  the  ground  that  the  case  was  one  arising  under  a  treaty, 
but  the  latter  court  did  not  consider  it  such  a  case  and  dismissed 
the  writ.148 

§  254.  In  Massachusetts. — In  Massachusetts  a  suit  was  brought 
upon  an  information  in  the  nature  of  an  inquest  of  office,  and  it 
was  alleged  in  the  information  that  an  alien  had  purchased  the 
tenements  in  fee ;  that  in  consequence  of  his  alienage  the  common- 
wealth was  entitled  to  them,  but  the  defendant  unlawfully  held 
them.  The  defense  was  placed  on  two  grounds:  First,  that  an 
inquest  of  office  could  not  be  had  to  entitle  the  commonwealth 
to  lands  purchased  by  an  alien,  after  he  had  conveyed  his  estate 
in  them;  and  secondly,  that  by  the  treaty  of  1794  between  Great 
Britain  and  the  United  States,  the  alien  was  protected  in  his  pur- 
chase, so  that  a  conveyance  by  him  in  fee  to  a  citizen  of  the 
United  States  would  pass  the  estate  to  such  citizen.  The  court 

147  Yeaker's      Heirs      v.      Yeaker's  ' cases  arising  under  treaties.'     Each 
Heirs,  4  Met.   (Ky.)   33,  81  Am.  Dec.  treaty    stipulates    something    respect- 
530.  ing   the   citizens   of   the   two   nations, 

148  Owings  v.  Norwood,  2  Har.  &  J.  and   gives   them   rights.     Whenever   a 
(Md.)   96.     In  the  United  States  su-  right   grows    out   of,    or   is   protected 
preme   court  Mr.  Chief  Justice   Mar-  by,  a  treaty,  it  is  sanctioned  against 
shall  said:  "The  reason  for  inserting  nil    the    laws    and    judicial    decisions 
that    clause    in    the    constitution   was  of  the  states,  and  whoever  may  have 
that  all  persons  who  have  real  claims  Ihis  right,  it  is  to  be  protected.     But 
under  a  treaty  should  have  their  causes  i  f   the   person 's   title   is   not   affected 
decided  by  the  national  tribunals.     It  l:y   the   treaty,  if   he   claims   nothing 
was  to  avoid  the  apprehension  as  well  under    a   treaty,   his    title    cannot   be 
as    the    danger    of    state    prejudices.  protected  by  the  treaty."     Owings  v. 
The    words    of    the    constitution    are  Norwood,  5  Cranch,  344,  3  L.  ed.  120. 


297  IN  MICHIGAN.  [§§  255,  256 

did  not  give  an  opinion  on  the  first  ground,  but  held  the  second 
ground  of  defense  sufficient,  as  the  alien's  title  was  protected 
by  the  treaty.149  This  treaty  applies  to  vested  remainders  as 
well  as  to  estates  in  possession.  "The  word  'lands'  in  the  treaty 
must  be  understood  to  mean  any  estate  which  one  may  hold  in 
land,  and  cannot  be  confined  to  the  actual  possession  and  occupa- 
tion of  the  soil."150 

§  255..  In  Michigan. — In  Michigan  the  court  held  that  the 
provisions  of  the  treaty  of  1794  between  Great  Britain  and  the 
United  States  applied  only  to  the  protection  of  valid  titles.  They 
did  not  apply  to  mere  possessory  rights  without  any  title  in  fact, 
which  by  later  legislation  by  Congress  were,  in  cases  of  continuous 
occupancy  and  improvement,  enlarged  into  freeholds.151  The 
court  said  that  the  policy  of  the  government  had  uniformly  been 
to  encourage  resident  aliens  to  become  citizens,  and,  hence,  it 
would  violate  that  policy  to  concede,  by  construction,  to  those 
who  continued  to  be  aliens  by  choice,  rights  not  conferred  ex- 
pressly by  treaty  or  by  statute.152 

Where  a  treaty  recognizes  the  reservation  of  certain  lands  to 
have  been  in  a  certain  tribe  of  Indians,  the  courts  are  bound  so 
to  regard  it.  "When  a  treaty,"  said  Mr.  Justice  Campbell,  "has 
been  made  by  the  proper  federal  authority  and  ratified,  it  be- 
comes the  law  of  the  land,  and  the  courts  have  no  power  to  ques- 
tion, or  in  any  manner  look  into,  the  power  or  rights  of  the  na- 
tion or  tribe  with  whom  it  is  made.  The  action  of  the  treaty- 
making  power  is  conclusive  upon  such  inquiry."  153 

§  256.  In  New  York. — In  New  York  it  was  held  in  a  case  de- 
cided in  1802  that  the  American  Revolution  worked  no  forfeiture 
of  previously  vested  rights  in  lands.  The  court  considered  the 
rights  of  certain  aliens  to  acquire  land  in  that  state,  and  after 
deciding  in  their  favor,  stated  that  if  any  doubt  existed,  it  would 
be  removed  by  the  treaty,  and  after  quoting  the  ninth  article  of 
the  treaty  of  1794  between  Great  Britain  and  the  United  States, 

"9  Commonwealth  v.  Sheafe,  6  Mass.  152  Crane    v.    Eeeder,    21    Mich.    24, 

441.  4  Am.  Eep.  430. 

150  FOX  v   Southaek,  12  Mass.  143.  153  Maiden  v.  Ingersoll,  6  Mich.  372, 

151  Crane    v.    Eeeder,    21    Mich.    24,  376. 
4  Am..  Eep.  430. 


§    257]          TREATIES,    STATE    CONSTITUTIONS    AND    STATUTES.  298 

said:  "This  provision  thus  removes  all  objections  to  the  title  of 
those  lessors,  or  to  their  remedy  founded  on  the  joint  demise  of 
them,  and  their  husbands,  so  far  as  their  alienism  is  the  cause  of 
the  objection."154 

A  British  subject  died  in  1793  owning  real  estate  in  New  York 
without  issue,  leaving  a  brother  and  three  sisters  living  in  Ireland. 
In  1804  the  legislature  passed  an  act  vesting  the  real  estate  in 
one  of  the  sisters,  who  had  married  an  alien,  in  like  manner  as  if 
she  had  been  a  citizen  at  the  time  of  her  brother's  death.  In  an 
action  of  ejectment  it  was  held  that  the  decedent,  having  emi- 
grated to  this  country  after  the  Declaration  of  Independence,  was 
to  be  considered  as  an  alien,  and  that  the  land  held  by  him  was, 
by  the  provisions  of  the  treaty  of  1794,  vested  in  him  and  his 
heirs  notwithstanding  their  alienage.  The  act  of  the  legislature 
giving  the  whole  of  his  estate  to  one  of  his  heirs  in  exclusion  of 
the  rest  was  in  violation  of  the  treaty  and  void.155 

A  case  arose  in  that  state  where  the  treaty  of  1794  was  held  to 
have  no  application,  because  the  title  to  the  lands  involved  was 
acquired  after  the  treaty,  and  did  not  exist  at  the  time  the  treaty 
was  concluded,  the  treaty  protecting  only  existing  titles.156  But 
if  at  the  date  of  that  treaty  a  British  subject  was  the  owner  of 
land,  by  virtue  of  a  conveyance  executed  in  1774,  and  he  died 
an  alien  in  1802,  he  and  his  heirs,  it  was  held,  were  entitled  to 
protection  under  that  treaty,  although  they  had  no  possession 
under  their  title.  The  son  of  the  alien  owner,  who  was  also  an 
alien,  could  take  the  lands  by  descent  from  his  father.157 

Under  the  treaty  of  1794  a  British  subject  holding  lands  in  the 
United  States  was  authorized  to  convey  or  devise  the  property 
to  aliens  as  well  as  to  citizens.158  The  treaty  of  1794  rendered 
the  title  of  every  alien  British  subject  to  lands  in  every  part  of 
the  United  States  then  held  by  him  not  only  valid,  but  freely  alien- 
able, as  though  he  had  been  a  native-born  or  naturalized  citizen.159 

§  257.  Limitation  on  time  to  sell. — The  treaty  of  1845  between 
the  United  States  and  the  grand  duchy  of  Hesse  provided  that 

154  Jackson  v.  Lunn,  3  Johns.   Cas.  1M  Watson    v.    Donnelly,    28    Barb. 
109,    119,   per   Kadcliff,   J.  (N.  Y.)    653. 

155  Jackson  v.  Wright,  4  Johns.  75.  159  People  v.  Snyder,  51  Barb.    (N. 

156  Jackson  v.  Decker,  11  Johns.  418.  Y.)    589. 

157  Munro  v.  Merchant,  26  Barb.  (N. 
Y.)    384. 


299  LIMITATION    ON    TIME    TO    SELL.  [§    257 

in  cases  where,  on  the  death  of  any  person  holding  real  property 
within  the  territories  of  one  party,  such  real  property  would, 
according  to  the  law  of  the  land,  descend  on  the  subject  or  cit- 
izen of  the  other  were  he  not  disqualified  by  alienage,  such  cit- 
izen or  subject  shall  be  allowed  a  term  of  two  years  in  which  to 
sell  the  same,  which  term  may  be  reasonably  prolonged  accord- 
ing to  circumstances.  The  court,  construing  this  provision,  held 
that  title  to  real  property  descended  upon  the  death  of  the  owner 
to  such  heirs  of  the  decedent  as  were  residents  and  capable  of 
taking,  subject  to  be  de vested  by  a  sale  within  two  years  by  the 
alien  heirs.  If  the  alien  heirs,  however,  do  not  exercise  the  power 
of  sale  given  by  the  treaty,  within  the  time  specified,  and  no  pro- 
longation of  the  time  is  obtained,  the  title  vests  unqualifiedly  in 
the  citizen  heirs.  The  legislature  of  the  state,  where  Congress 
has  failed  to  act,  has  power  to  prolong  the  term  in  which  the 
power  of  sale  may  be  exercised.  It  has  the  power  to  determine 
what  would  be  a  reasonable  prolongation  of  that  term,  and  if  it 
passes  an  act  giving  an  indefinite  unlimited  time  in  which  the  alien 
heirs  can  convey  the  land,  it  does  no  harm  or  injustice  to  the 
resident  heirs.  Such  an  act  is  valid,  and  a  conveyance  made  by 
the  alien  heirs  after  the  expiration  of  the  period  of  two  years 
mentioned  in  the  treaty  is  valid.160  Such  a  treaty  modified  the 
laws  of  descent  prevailing  in  the  state  only  to  the  extent  neces- 
sary to  give  the  provisions  of  the  treaty  scope.  It  left  the  state 
laws  to  operate  as  a  devolution  of  the  estate  of  the  decedent,  sub- 
ject to 'the  power  of  sale  given  to  his  alien  heirs.  The  resident 
heirs,  by  such  a  treaty,  took  the  title  subject  to  the  power  of 
sale,  and  were  authorized  to  hold  the  land  until  a  conveyance 
was  made  by  the  alien  heirs  under  the  power  of  sale.161  The 
law  of  New  York  providing  that  the  right  of  alien  adult  males 
to  inherit  land  shall  be  dependent  on  the  filing  of  a  deposition 
of  their  intention  to  become  citizens  before  the  conclusion  of  pro- 
ceedings by  the  state  to  defeat  their  title  is  superseded,  so  far  as 
citizens  of  Prussia  are  concerned,  by  the  treaty  concluded  in  1828, 
declaring  that  subjects  of  that  country  who  are  incapable  by 
reason  of  alienage  from  inheriting  land  in  the  United  States  shall 
be  allowed  a  reasonable  time  in  which  to  sell  the  same,  and  to 

160  Bollerman    v.    Blake,    94    N.    Y.  161  Bollerman    v.    Blake,    94    N.    Y. 

624,  24  Hun  (N.  Y.),  187.  624,  24  Hun  (N.  Y.),  187. 


§  258]    TREATIES,  STATE  CONSTITUTIONS  AND  STATUTES.       300 

withdraw  the  proceeds.162  It  was  in  the  case  just  cited  considered 
that  a  sale  of  the  land  of  a  decedent  within  two  years  and  four 
months  after  his  death  was  a  sale  within  a  reasonable  time  as  con- 
templated by  this  provision  of  the  treaty.163 

The  provision  in  the  treaty  with  Wiirttemberg  that  an  alien 
shall  be  allowed  two  years  in  which  to  sell  real  property,  which 
term  may  be  reasonably  prolonged,  is,  it  is  held,  in  effect  a  stat- 
ute of  limitation,  and  when  there  has  been  no  prolongation  the 
statute  must  apply.164 

§  258.  Existence  of  title  at  time  of  treaty. — As  the  treaties 
of  1783  and  1794  between  the  United  States  and  Great  Britain 
provide  only  for  titles  then  existing,  no  claim  to  lands  can  be 
established  under  either  treaty  where  the  claimant  cannot  show 
a  title  in  himself  or  his  ancestor  at  the  time  of  the  execution  of 
the  treaty.  A  native  of  New  York,  whom  we  shall  call  A,  resided 
and  owned  land  in  that  state  after  the  Declaration  of  Inde- 
pendence, but  in  1783  left  for  Nova  Scotia  with  his  family, 
excepting  his  eldest  son.  He  died  on  the  passage  but  his  family 
continued  on  to  Nova  Scotia,  where  they  settled  and  remained 
ever  afterward  in  the  British  provinces.  His  eldest  son  remained 
in  New  York  in  the  occupation  of  the  land  until  1838,  in  which 
year  he  died,  leaving  surviving  him  several  children.  It  was  de- 
cided that  all  of  A's  children  were  aliens,  incapable  of  taking  by 
descent,  and  that  as  against  them  the  land  should  be  awarded  to 
the  children  of  the  eldest  son.165 

The  escheat  of  lands  held  by  British  subjects  in  New  York 
was  barred  by  the  sixth  article  of  the  treaty  of  1783,  and  they 
were  enabled  to  transmit  them  by  descent,  but  such  descent  must 
be  to  a  citizen.  If  a  British  subject  died  previous  to  the  treaty 
of  1794,  leaving  no  citizen  heirs,  the  provisions  of  the  treaty,  it 
was  decided,  did  not  pass  the  land  to  alien  heirs,  but  it  es- 
cheated.166 So,  under  the  treaty  with  Prussia,  an  alien  may 
take  and  hold  land  under  a  devise  from  a  native-born  citizen.167 

1C2  In  re  Beck,  11  N.  Y.  Supp.  199,  m  Wieland  v.  Kenner,  65  How.  Pr. 

31   N.   Y.   St.   965,   2    Connolly   Surr.  245. 

(N.  Y.)   355.  163  Orser  v.  Hoag,  3  Hill   (N.  Y.), 

10  In  re  Beck,  11  N.  Y.  Supp.  199,  79. 

31   N.   Y.    St.   965,   2   Connolly   Surr.  M  Brown  v.  Sprague,  5  Denio    (N. 

(N.  Y.)   355.  Y.),   545. 

167  Stamm  v.  Bostwick,  40  Hun,  35. 


301  SAME  RIGHTS  AS  RESIDENT  HEIR.  [§§    259,    260 

§  259.  Same  rights  as  resident  heir. — The  treaty  between  the 
United  States  and  Wiirttemberg  providing  that  an  alien  heir  shall 
be  allowed  two  years  in  which  to  sell  property  devolving  on  him 
is  intended  to  confer  on  the  alien  heir  for  that  period  precisely 
the  rights  that  he  would  enjoy  if  he  were  a  resident  heir.  Pend- 
ing that  time,  he  may  possess  the  property,  improve  it  and  exer- 
cise all  dominion  over  it  for  the  purpose  of  rendering  it  more 
productive  and  valuable,  and  may  enjoy  its  rents  and  profits. 
The  treaty,  as  the  supreme  law  of  the  land,  is  paramount  to  all 
state  laws.168 

§  260.  In  North  Carolina. — In  North  Carolina,  article  6  of  the 
treaty  made  in  1782  between  the  United  States  and  the  States 
General  of  the  United  Netherlands  was  before  the  court  for  con- 
struction, and  one  of  the  questions  to  be  determined  was  as  to 
the  meaning  to  be  given  to  the  word  "effects" — whether  it  in- 
cluded things  immovable  as  well  as  movable.  The  court  declared 
that  unless  the  word  embraced  things  immovable  as  well  as  mov- 
able, no  right  was  granted  by  the  treaty,  because  under  the  law  re- 
lative to  alienage  there  was  no  objection  to  the  acquisition  of  title  to 
movable  or  personal  property,  either  by  purchase  or  succession 
by  law.169 

168  Kull  v.  Kull,  37  Hun    (N.  Y.),  pose  of  their  effects  by  testament,  do- 
476.     This    treaty    of    1844    between  nation,  or  otherwise;   and  their  heirs, 
the  United  States  and  the  kingdom  of  subjects  of  one  of  the  parties,   shall 
Wiirttemberg    relative    to    the    right  receive  such  successions  ab  intestato, 
of  aliens  to  succeed  by  descent  was  even   though   they   have   not   received 
abrogated  by  the  treaty  of  Decem-  letters  of  naturalization.     And,  if  the 
ber    11,    1871,    between    the    United  heirs   to    whom   such   succession   falls 
States  and  the  Emperor  of  Germany,  shall    be    minors,    their    guardian    or 
as  the  latter,  under  the  constitution  curator  may  govern,  direct,  and  alien- 
of  the  Empire  of  Germany,  in  which  ate  the  effects  fallen  to  such  minors 
the    kingdom    of    Wiirttemberg    had  by    inheritance.     If    this    case    rested 
become  incorporated,  represents  the  on   the   meaning   to   be   given   to   the 
empire  among  nations  and  makes  alii-  word  'effects'  even  without  a  context, 
ances    with    them.     In    re    Strobel's  I  should  think,  being  found  where  it 
Estate,   39  N.   Y.   Supp.   69,   5   App.  is,   in  a   treaty  between  powers  hav- 
Div.  621.  ing    no    common    technical    terms — in 

169  University    v.    Miller,    14    N.    C.  fact  not  a  common  language — that  it 
188.     The  language  of  the  court  wah  included    things    immovable    as    well 
as  follows :  ' '  The  next  question  is  the  as    movable.     In   the   first    place,    the 
effect  of  that  treaty  on  the  case.     By  instrument  is  to  receive  an  extended 
the   sixth   article   it   is   provided   that  and  liberal  construction;  not  like  the 
the  subjects  of  either  party  may  dis-  contract  of  individuals,  where  nothing 


§  261] 


TREATIES,    STATE    CONSTITUTIONS   AND    STATUTES. 


302 


Although  many  revolutions  and  changes  in  the  government  had 
occurred,  the  court  held  in  that  case  that  the  courts  cannot  notice 
judicially  what  treaties  with  foreign  governments  are  in  force,  as 
that  question  must  be  determined  by  the  Executive.170 

§  261.  Confiscation  acts  annulled. — The  treaty  of  peace  with 
Great  Britain  of  1783  annulled  the  confiscation  acts  of  North 
Carolina,  and  debts  due  to  British  subjects  paid  into  the  public 
treasury  in  conformity  with  such  confiscation  acts  may  be  re- 


is  presumed  to  be  granted  but  that 
falls  plainly  within  the  words  of  the 
grant.  But  in  this  case,  unless  the 
meaning  of  the  word  be  extended  to 
things  immovable,  nothing  at  all  is 
granted  by  the  word  'effects';  for 
by  our  law  alienage  is  no  objection 
to  the  acquisition  of  movables  in  any 
way,  either  by  purchase  or  succession 
ab  intestato.  And  so  I  presume  it 
is  in  the  States  General.  If  not,  to 
obtain  it  by  pretending  to  grant  some- 
thing in  lieu  of  it,  when  in  fact  noth- 
ing was  granted,  is  a  trick  which  I 
would  not,  even  in  argument,  im- 
pute to  our  negotiator.  But  taken 
with  the  context,  I  think  there  cannot 
be  a  doubt.  The  words  'succession 
ab  intestato'  are  a  well-known  term 
of  the  civil  law — a  law  on  which  the 
laws  of  continental  Europe  may  be 
said  to  be  based.  By  that  law,  it  in- 
cludes succession  to  immovable  as  well 
as  movable  estates.  And  to  use  terms 
which  by  this  almost  universal  law 
would  give  to  our  citizens  the  right 
to  succeed  to  immovable  estates,  and 
to  deny  it  to  them  by  any  restricted 
sense  to  which  we  might  confine  the 
terms,  is  not  presumed  to  have  been 
the  intent  of  either  party.  I  say 
'to  give  to  our  citizens'  because,  if 
the  ci\il  law  prevails  in  the  Nether- 
lands— and  I  presume  it  does — it 
would  do  so.  But  why  negotiate  in 
the  terms  of  the  laws  of  the  Nether- 


lands, and  not  in  the  terms  of  our 
laws?  The  answer  is:  Our  laws  are 
peculiar  to  use  and  the  English — the 
civil  law,  common  to  all  continental 
Europe.  But  there  are  terms  in  the 
context  which  even  in  our  law  would 
give  to  this  word  'effects'  an  im- 
movable character.  In  the  civil  law, 
he  who  succeeds  to  the  estate  of  a 
dead  man,  either  movable  or  immov- 
able, is  called  'heir.'  By  our  law, 
the  term  is  confined  to  him  who  suc- 
ceeds to  his  immovable,  or  rather  real, 
estate.  By  the  civil  law,  'inherit- 
ances' embrace  movable  as  well  as 
immovable  estates.  By  our  law,  the 
term  is  confined  to  immovable  estates; 
at  least,  it  does  not  embrace  what  we 
call  'chattels.'  But  in  the  treaty 
both  the  word  '  heirs '  and  the  wore! 
'inheritances'  are  used.  How  shall 
they  be  understood — according  to  our 
laws  or  theirs?  If,  by  our  laws,  goods 
only  are  to  be  included,  we  shall  have 
in  our  legal  phraseology — new,  to  be 
sure — '  heirs  claiming  money  and  other 
personal  goods,  descending  from  their 
ancestor  as  their  inheritance. '  It  is 
very  plain,  I  think,  that  it  was  in- 
tended to  embrace  all  kinds  of  prop- 
erty by  the  treaty;  and  therefore,  the 
lands  in  question  are  embraced  by  it. 
Effects  descending  by  inheritance 
must  include  land." 

170  University   v.    Miller,    14   N.    C. 
188. 


303  IN   PENNSYLVANIA.  [§    262 

covered  by  the  creditor  from  the  debtor.171  And  where  a  person 
named  in  such  confiscation  act  has  given  a  bond  to  convey  his 
land,  he  is  entitled  under  that  treaty,  as  a  British  subject,  to  re- 
cover the  balance  due  on  the  bond.172  But  if  the  confiscation 
had  been  perfected  by  inquest  and  lapse  of  time,  the  treaty  has 
no  operation.173 

§  262.  In  Pennsylvania. — In  Pennsylvania  an  act  of  proclama- 
tion was  issued  during  the  war  of  the  Revolution,  and  an  indi- 
vidual who  did  not  appear  within  the  time  prescribed  was  at- 
tainted of  treason  for  adhering  to  the  King  of  Great  Britain; 
and  as  a  consequence  his  estate  was  confiscated  to  the  use  of  the 
commonwealth.  It  had,  however,  not  been  taken  into  possession, 
and  after  peace  had  been  declared  he  returned  to  Pennsylvania 
and  applied  to  the  executive  council  for  a  restoration  of  his  es- 
tate, representing  that  he  was  a  minor  at  the  time  of  his  attainder, 
and  was  forcibly  prevented  by  his  guardian  from  enlisting  in  the 
American  army.  It  was  finally  suggested  that  the  attorney  gen- 
eral should  file  a  suggestion  in  the  supreme  court  of  the  attainder 
of  the  defendant,  and  this  was  done.  But  the  chief  justice 
delivered  the  opinion  of  the  court  to  the  effect  that  any  pro- 
ceedings against  the  defendant  would  contravene  the  treaty  of 
peace  and  amity  between  the  United  States  and  Great  Britain,  for 

171  Hamilton  v.  Eaton,  2  Mart.  (1  former.  Nor  is  it  material,  as  to  the 
N.  C.)  1,1  Hughes,  249,  Fed  Gas.  No.  effect  of  the  public  will,  what  organ 
5980.  Said  Chief  Justice  Ellsworth:  it  is  declared  by,  provided  it  be  an 
' '  Here  it  is  contended  by  the  defend-  organ  constitutionally  authorized  to 
ant's  counsel  that  the  confiscation  act  make  the  declaration.  A.  treaty  when 
has  not  been  repealed  by  the  state;  it  is  in  fact  made,  is,  with  regard  to 
that  the  treaty  could  not  repeal  or  each  nation  that  is  a  party  to  it,  a 
annul  it;  and  therefore  that  it  re-  national  act,  an  expression  of  the 
mains  in  force,  and  secures  the  de-  national  will,  as  much  so  as  a  stat- 
fendant.  And  further,  that  a  repeal  ute  can  be.  And  it  does,  therefore, 
of  it  would  not  take  from  him  a  right  of  necessity,  annul  any  prior  statute, 
vested  to  stand  discharged.  As  to  so  far  as  there  is  an  interference, 
the  opinion,  that  a  treaty  does  not  The  supposition  that  the  public  can 
annul  a  statute,  so  far  as  there  is  an  have  two  wills  at  the  same  time,  re- 
interference,  it  is  unsound.  A  stat-  pugnant  to  each  other,  one  expressed 
ute  is  a  declaration  of  the  public  will,  by  a  statute  and  another  by  a  treaty, 
and  of  high  authority ;  but  it  is  con-  is  absurd. ' ' 

trollable    by    the    public    will    subse-  172  Bay  v.  McCulloch,   1  N.   C.    (N. 

quently  declared.     Hence  the  maxim,  C.    Conf.)    492. 

that  when  two  statutes  are  opposed  to  m  Commonwealth     v.     Bristow,     6 

each   other,   the   latter  abrogates   the  Call   (Va.),  60. 


§§    263,    264]       TREATIES,   STATE   CONSTITUTIONS   AND   STATUTES.       304 

which  reason  it  refused  to  sustain  the  suggestion  filed  by  the 
attorney  general.174  Referring  again  to  the  attainder  laws  of 
that  state  it  was  held  in  the  federal  courts  that  the  stipulations 
in  the  treaty  are  paramount  to  the  provisions  of  a  particular 
state.175 

§  263.  In  South  Carolina.— In  South  Carolina  the  effect  of 
treaties  upon  alienage  has  been  considered,  and  the  court  de- 
cided that  the  treaty  of  1794  enabled  an  alien  mother  of  an 
American  daughter  to  inherit  her  lands  in  that  state.176  But  it 
was  held  that  this  treaty  did  not  enable  aliens  to  take  by  descent 
the  land  of  British  subjects  situated  in  this  country.177  By  the 
provisions  of  the  treaty  with  Prussia,  citizens  and  subjects  of  the 
two  countries  are  authorized  to  sell  real  estate  which  descends 
to  them  in  the  country  of  the  other  power,  and  these  provisions 
are  applied  to  Poles,  who  are  subjects  of  Prussia,  and  conse- 
quently they  are  allowed  to  take  by  virtue  of  the  residuary  clauses 
in  a  will.178 

§  264.  In  Tennessee. — In  Tennessee  the  court  stated  that  an 
alien  had  no  inheritable  blood.  Provisions  as  to  the  rights  of 
alien  heirs  were  made  by  the  code  of  that  state,  but  the  cause 
before  the  court,  it  was  stated,  must  be  determined  at  last  upon 
the  international  agreement  on  the  subject  existing  with  France, 
and  in  the  language  of  Mr.  Justice  Sneed:  "If  the  law  contra- 
venes the  treaty,  the  latter  must  prevail.  The  treaty  is  the  su- 
preme law  on  this  subject.  Whenever  a  right  grows  out  of  or 
is  protected  by  a  treaty,  it  is  sanctioned  against  all  the  laws 
and  judicial  decisions  of  the  state;  and  whoever  may  have  this 
right,  it  is  to  be  protected."179 

Construing  the  treaty  of  1783,  the  court  held  that  natives  of 
Scotland  who  became  residents  and  had  their  domicile  in  the 
United  States  before  the  close  of  the  revolutionary  war  were 
prima  facie  not  aliens,  and  that  the  burden  of  proving  their  ad- 

174  Kespublica    v.    Gordon,    1    Dall.  See   for   other   cases   in   South   Caro- 
(Pa.)    233,    1   L.   ed.   115.  lina,  Duncan  v.  Beard,  2  Nott  &  McC. 

175  Gordon  v.  Kerr,  1  Wash.  C.   C.  400;   Love  v.  Hadden,  3  Brev.  1. 
322,  10  Fed.  Cas.  No.  5611.  178  Hart  v.  Hart,  2  Desaus.  Eq.  57. 

176  Megrath  v.  Eobertson,  1  Desaus.  179  Baker  v.  Shy,  9  Heisk.    (Tenn.) 
Eq.  449.  85. 

177  Ex  parte  Dupont,  Harp.   Eq.   5. 


305  IN  TEXAS.  [§§  265,  266 

herence  to  the  British  crown  rested  upon  those  who  imputed 
alienage.180 

Where,  in  an  action  of  ejectment,  the  plaintiff  claimed  under 
a  grant  from  North  Carolina  made  in  1800,  founded  on  an  entry 
made  in  1783,  and  the  defendant  based  his  claim  on  a  reservation 
in  favor  of  a  native  Indian  by  a  treaty  made  with  the  Cherokee 
Indians  in  1879,  it  was  decided  that  the  defendant  had  the 
better  title.181  It  was  likewise  held  that  the  reservations  of 
land  to  the  head  of  every  Indian  family  made  by  the  treaties 
with  the  Cherokees  of  1817  and  1819  are  valid  and  binding  on 
the  state  of  Tennessee  and  on  all  persons  claiming  through  the 
state.182 

§  265.  In  Texas. — In  Texas  it  was  claimed  that  the  statute 
providing  for  an  investigation  by  commissioners  of  land  titles 
was  in  violation  of  the  treaty  of  Guadalupe  Hidalgo.  The  stat- 
ute provided  that  "No  sale  by  any  claimant  of  land  under  the 
provisions  of  this  act  shall  take  place  until  after  a  title  to  the 
same  shall  have  been  confirmed  to  the  original  claimant  or 
claimants,  but  all  such  sales  of  lands  or  claims  to  lands  shall 
be  void;  and  no  claims  to  lands  in  the  hands  of  a  third  person 
shall  be  recognized  by  the  board  of  commissioners  unless  the 
sale  or  transfer  of  the  same  was  made  prior  to  the  passage  of 
the  act."  It  was  claimed  that  this  act  was  in  violation  of  the 
treaty,  and  while  the  court  said  it  would  be  a  sufficient  answer  to 
the  objection  to  say  that  it  did  not  appear  that  the  claimant  was 
a  citizen  of  Mexico  at  the  date  of  the  treaty,  yet  even  if  he  were, 
the  act  was  not  violative  of  the  treaty  because  it  secured  Mexicans 
in  their  rights  of  property  and  gave  them,  in  that  respect,  the 
same  protection  extended  to  citizens  of  the  United  States.183 

§  266.  In  Virginia. — In  Virginia,  under  the  treaty  of  1794 
between  the  United  States  and  Great  Britain,  it  was  held  that 
an  alien  had  the  power  to  convey  by  deed  or  will  any  real  es- 
tate held  by  him  at  the  date  of  the  treaty  to  any  person  capable 

180  Moore     v.  Wilson,     10     Yerg.  182  Blair     v.     Pathkiller,  2       Yerg. 
(Tenn.)  406.                                                      (Tenn.)    407. 

181  Cornet     v.  Winston,     2     Yerg.  183  Baldwin    v.    Goldfrink,    88    Tex. 
(Tenn.)    144.                                                     249,  31  S.  W.  1064. 

Treaties — 20 


§    266]          TREATIES,    STATE   CONSTITUTIONS   AND    STATUTES.  306 

of  taking  and  holding  title  to  real  property.184  But  where  the 
land  has  been  actually  confiscated  by  office  found,  and  the  con- 
fiscation perfected,  the  treaty  had  no  operation.185 

As  a  citizen  of  Great  Britain  was  by  the  treaty  entitled  to  hold 
land,  and  no  proceedings  had  been  instituted  during  the  war  of 
1812  to  escheat  it,  his  rights  were  not  devested  by  the  war,  but 
upon  his  death  the  land  descended  to  his  heirs.186 

m  Foxwell  v.  Craddock,  1  Pat.  &  "•  Fiott  v.  Commonwealth,  12  Gratt. 
H.  (Va.)  250.  (Va.)  564. 

185  Commonwealth  v.  Bristow,  6  Call 
(Va.),   60. 


307  TREATIES  OP  CESSION.  [§    267 


CHAPTER  X. 

TEEATIES  OF  CESSION. 

§  267.     Power  to  acquire  territory  by  treaty. 

268.     Territory  may  be  acquired  by  war  power  or  treaty-making  power. 
§  269.     Sovereignty  passes  and  not  property. 
§  270.     Wishes  of  population  not  to  be  consulted. 
§  271.     Eules  of  international  law. 
§  272.     Samoan  and  Gilbert  Islands. 
§  273.     Titles  not  devested. 
§  274.     Tide  lands  previously  granted. 

§  275.     Grants  made  by  states  in  case  of  disputed  boundaries. 
§  276.     What  are  property  rights. 
§  277.     Subsequent  acts  of  Congress. 
§  278.     Property   includes    every   species    of   title. 
§  279.     Copyrights,  patents  and  trademarks. 

Loss  of  trademarks  by  laches. 

Political  department  to  provide  mode. 

Delegation  to   judicial   department. 
§  283.     Incomplete  titles  not  made  complete. 
§  284.     Grant  deemed  abandoned. 

Collateral  attack. 

Perfected  claims  before  land  commission. 

Measuring  of  land. 

Titles   complete   at   time   of  cession. 

Act  of  Congress  in  conflict  with  treaty  of  cession. 

Mexican  titles  in  California  after  treaty. 

Effect  of  these  acts. 

Decree  has   effect   of  judgment. 

Other  statutes. 

Preventing  incorporation  of  ceded  territory  into  United  States. 

Inhabitants  of  ceded  territory  as  citizens. 

Foreign   corporations  not   subjects. 

Effect  of  treaty  on  dam  in  Eio  Grande. 

§  267.  Power  to  acquire  territory  by  treaty .-^-The  Constitu- 
tion does  not  contain  an  express  declaration  that  the  United 
States  has  power  to  acquire  foreign  territory  by  treaty,  but  as 
Chief  Justice  Marshall  said,  the  Constitution  does  confer  ''ab- 
solutely on  the  government  of  the  Union  the  power  of  making 
war  and  of  making  treaties;  consequently,  that  government  pos- 


§    268]  TREATIES  OF  CESSION.  308 

sesses  the  power  of  acquiring  territory,  either  by  conquest  or  by 
treaty."1 

With  respect  to  the  relations  of  the  inhabitants  to  each  other, 
Chief  Justice  Marshall  said:  "The  usage  of  the  world  is,  if  a 
nation  be  not  entirely  subdued,  to  consider  the  holding  conquered 
territory  as  a  mere  military  occupation,  until  its  fate  shall  be 
determined  at  the  treaty  of  peace.  If  it  be  ceded  by  the  treaty, 
the  acquisition  is  confirmed,  arid  the  ceded  territory  becomes  a 
part  of  the  nation  to  which  it  is  annexed,  either  on  the  terms 
stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new  master 
shall  impose.  On  such  transfer  of  territory  it  has  never  been 
held  that  the  relations  of  the  inhabitants  with  each  other  undergo 
any  change.  Their  relations  with  their  former  sovereign  are 
dissolved,  and  ,new,  relations  are  created  between  them  and  gov- 
ernment which  has  acquired  their  territory.  The  same  act  which 
transfers  their  country,  transfers  the  allegiance  of  those  who 
remain  in  it;  and  the  law,  which  may  be  denominated  political, 
is  necessarily  changed,  although  that  which  regulates  the  inter- 
course and  general  conduct  of  individuals,  remains  in  force  until 
altered  by  the  newly  created  power  of  the  state. "  2 

§  268.  Territory  may  be  acquired  by  war  power  or  treaty- 
making  power. — As  said  by  Mr.  Justice  Swayne:  "What  is  clearly 
implied  in  a  written  instrument  is  as  effectual  as  what  is  ex- 

1  American  Ins.  Co.  v.  356  Bales  of  ''This    treaty    is    the    law    of    the 
Cotton,  1  Pet.   (U:  S.)   512,  7  L.  ed.  land,   and  admits   the  inhabitants  of 
243.                                            .'  Florida  to  the  enjoyment  of  the  privi- 

2  American  Ins.  Co.  v.  356  Bales  of  leges,   rights,  and  immunities  of  the 
Cotton,  1  Pet.   (U.  S.)    512,  7  L.  ed,  citizens  of  the  United  States.     It  is 
255:   "On  the  2d  of  February,  1819,  unnecessary    to    inquire'  whether    this 
Spain    ceded   "Florida    to    the   United  is  not  their  condition,  independent  of 
States.     The  6th  article  of  the  treaty  stipulation.     They    do    not,    however, 
of  cession  contains  the  following  pro-  '  participate    in    political   power ;    they 
vision:    'The  inhabitants   of  th'e   ter-  do  not  share  in  the  government  with 
ritories    which    his    Catholic    majesty  Florida    till    Florida    shall   become    a 
cecles  'to    the   United   States   by    this  State.     In  the  meantime,  Florida  con- 
treaty    shall   be   incorporated   in   the  tinues  to  be  a  territory  of  the  United 
Union  of  the  United  States,  as  soon  States,    governed   by    virtue    of    that 
as  may  be  consistent  with  the  prin-  clause  in  the   constitution  which   em- 
ciples  of  the  federal  constitution,  and  powers   Congress   'to   make  all   need- 
admitted    to    the    enjoyment    of    the  ful   rules   and   regulations   respecting 
privileges,  rights,  and  immunities  of  the  territory  or  other  property  belong- 
the  citizens  of  the  United  States. '  ing  to  the  United  States. ' 


309  SOVEREIGNTY   PASSES   AND   NOT   PROPERTY.  [§    269 

pressed.  The  war  power  and  the  treaty-making  power,  each 
carries  with  it  authority  to  acquire  territory.  Louisiana,  Florida 
and  Alaska  were  acquired  under  the  latter,  and  California  under 
both."  The  power  of  the  United  States  to  acquire  territory, 
either  by  purchase  or  by  treaty,  is  undisputed,  and  when  the 
territory  of  California  passed  to  the  federal  government,  every 
acre  of  land  not  the  property  of  Mexican  citizens  passed  to  it. 
As  sovereignty  can  never  be  in  abeyance,  it  follows,  upon  the 
ground  of  necessity,  that  until  the  organization  of  some  local 
government,  the  United  States  succeeded  to  and  represented  the 
government  of  Mexico,  so  far  as  under  the  Constitution  such 
powers  could  be  exercised.4  After  the  acquisition  of  foreign 
territory  by  treaty,  Congress  has  the  power  to  pass  laws  for  the 
purpose  of  protecting  the  private  rights  of  the  inhabitants  of  the 
ceded  territory  that  have  been  guaranteed  to  them  by  the  treaty. 
State  authority  cannot  interfere  with  such  laws.5 

§  269.  Sovereignty  passes  and  not  property. — When  territory 
is  acquired  by  a  treaty  of  cession,  the  sovereignty  over  the  ter- 
ritory ceded  passes  to  the  United  States,  but  not  the  property  of 
the  inhabitants.  It  was  stipulated  in  the  treaty  by  which 
Louisiana  was  acquired  that  the  inhabitants  of  the  ceded  territory 
should  be  protected  in  the  free  enjoyment  of  their  property.0 
But  Chief  Justice  Marshall,  in  a  case  in  which  this  treaty  came 
before  the  court,  said  that  as  a  just  nation  the  United  States  re- 
garded this  stipulation  as  a  declaration  of  a  principle  "which 
would  have  been  held  equally  sacred  though  it  had  not  been  in- 
serted in  the  contract. ' '  7 

Mr.  Justice  Baldwin,  delivering  the  opinion  of  the  court,  said 
that  it  was  definitely  settled:  "That  by  the  law  of  nations,  the 

"Perhaps  the  power  of  governing  source  whence   the  power  is   derived, 

a    territory   belonging  to   the   United  'the  possession  of  it  is  unquestioned." 

States,   which   has   not,   by   becoming  United  States  v.  356  Bales  of  Cotton, 

a  state,   acquired  the  means  of  self-  1  Pet.  512,  7  L.  ed.  255. 

government,    may    result    necessarily  3  Stewart  v.  Kahn,  11  Wall.  (U.  S.) 

from  the   facts  that  it  is  not  within  507,    20    L.    ed.    179. 

the  jurisdiction  of  any  particular  state  *  People  v.  Folsom,  5  Cal.  375. 

and   is   within   the   power  and   juris-  8  Gardiner  v.  Miller,  47  Cal.  570. 

diction    of    the    United    States.     The  *  8  Stats,  at  Large,  200. 

right  to  govern  may  be  the  inevitable  T  Soulard  v.  United  States,  4  Pet. 

consequence    of   the   right    to   acquire  (U.   S.)    511,   7  L.   ed.   938. 
territory.     Whichever     may     be     the 


§    270]  TREATIES  OF  CESSION.  310 

inhabitants,  citizens,  or  subjects  of  a  conquered  or  ceded  country, 
territory  or  province  retain  all  the  rights  of  property  which  have 
not  been  taken  from  them  by  the  orders  of  the  conqueror,  or  the 
laws  of  the  sovereign  who  acquires  it  by  cession,  and  remain  un- 
der their  former  laws  until  they  shall  be  changed.  That  a  treaty 
of  cession  was  a  deed  or  grant  by  one  sovereign  to  another,  which 
transferred  nothing  to  which  he  had  no  right  of  property,  and 
only  such  right  as  he  owned  and  could  convey  to  the  grantee. 
That  by  the  treaty  with  Spain  the  United  States  acquired  no 
lands  in  Florida  to  which  any  person  had  lawfully  obtained  such 
a  right  by  a  perfect  or  inchoate  title,  that  this  court  could  con- 
sider it  as  property  under  the  second  article,  or  which  had,  ac- 
cording to  the  stipulations  of  the  rights,  been  granted  by  the  law- 
ful authorities  of  the  king;  which  words  'grants  or  concessions' 
were  to  be  construed  in  their  broadest  sense,  so  as  to  comprehend 
all  lawful  acts  which  operated  to  transfer  a  right  of  property, 
perfect  or  imperfect. ' ' 8 

§  270.  Wishes  of  population  not  to  be  consulted. — There  is  no 
principle  of  international  law  that  the  wishes  of  the  people  should 
be  consulted  upon  the  cession  of  the  territory  inhabited  by  them, 
and  until  title  by  conquest  has  disappeared,  no  such  principle  can 
be  adopted.9  In  1897,  when  it  was  proposed  to  annex  the 
Hawaiian  Islands  to  the  United  States,  objections  to  this  course 
were  made  by  Mr.  Torn  Hoshi,  the  Japanese  Minister,  under  in- 
structions from  Count  Okuma,  and  in  the  opening  of  the  note  on 
the  subject  the  statement  was  made:  "It  is  understood  that  only 
a  small  fraction  of  their  number  favor  annexation."  Mr.  Sher- 
man, Secretary  of  State,  said  that  he  could  not  allow  this  declara- 
tion to  pass  over  in  silence,  and  stated:  "It  cannot  be  that  one 
so  well  informed  in  the  history  of  international  relations  as  Count 
Okuma  could  have  wished  to  suggest  thereby  the  propriety  of 
appealing  from  the  action  of  the  Government  to  'the  population.' 
In  international  comity  and  practice  the  will  of  a  nation  is  as- 
certained through  the  established  and  recognized  government,  and 
it  is  only  through  it  that  the  nation  can  speak.  This  is  shown 

8  Mitchel  v.  United  States,  9   Pet.  9  Hale 's  International  Law,  4th  ed., 

711,  9  L.  ed.  283.  49. 


311  RULES    OF    INTERNATIONAL    LAW.     .  [§    271 

in  the  relations  of  the  United  States  with  Japan.  The  first  in- 
tercourse of  this  Government  with  the  Empire  was  had,  with  an 
authority  which  held  a  divided,  if  not  disputed,  sovereignty. 
Later,  when  all  power  and  legislation  was  centered  in  the  Em- 
peror, this  Government  recognized  him  as  the  sole  exponent  of  the 
public  will.  When  parliamentary  government  was  established 
the  changed  relation  was  accepted  by  the  United  States.  No  in- 
quiry was  thought  proper  to  ascertain  whether  these  various 
changes  received  the  sanction  of  'the  population.'  The  present 
Government  of  the  Hawaiian  Islands,  recognized  by  Japan  and 
other  countries,  has  been  in  existence  for  a  series  of  years,  dur- 
ing which  time  public  peace  and  social  order  have  been  main- 
tained, and  the  country  has  enjoyed  an  era  of  unprecedented  pros- 
perity. The  Government  of  the  United  States  sees  no  reason  to 
question  its  complete  sovereignty,  or  its  right  to  express  the  na- 
tional will. " 10 

§  271.  Rules  of  international  law. — It  was  contended  by  the 
government  of  Chile  that  a  sovereign,  when  occupying  a  con- 
quered territory,  possessed,  by  the  principles  of  international  law, 
the  right  to  test  titles  acquired  under  his  predecessor,  by  apply- 
ing to  them  the  municipal  law  of  his  own  government,  and  not 
the  municipal  law  of  its  predecessor,  or  under  which  they  were 
vested.  Mr.  Bayard,  Secretary  of  State,  in  answering  this  con- 
tention, cited  the  cases  holding  that  the  rights  acquired  under  the 
prior  Mexican  and  Spanish  law  were  "consecrated  by  the  law 
of  nations,"  and  said:  "The  Government  of  the  United  States, 
therefore,  holds  that  titles  derived  from  a  duly  constituted  prior 
foreign  government  to  which  it  has  succeeded  are  'consecrated 
by  the  law  of  nations'  even  as  against  titles  claimed  under  its 
own  subsequent  laws.  The  rights  of  a  resident  neutral — having 
become  fixed  and  vested  by  the  law  of  the  country  cannot  be 
denied  or  injuriously  affected  by  a  change  in  the  sovereignty  or 
public  control  of  that  country  by  transfer  to  another  government. 
His  remedies  may  be  affected  by  the  change  of  sovereignty  but 
his  rights  at  the  time  of  the  change  must  be  measured  and  de- 
termined by  the  law  under  which  he  acquired  them The 

Government  of  the  United  States  is  therefore  prepared  to  insist 

10  MS.  Notes    to    Japanese    Legation,   I,   533,   535;    1   Moore   Int.   L.   D. 
274. 


§    272]  TREATIES  OF  CESSION.  312 

on  the  continued  validity  of  such  titles,  as  held  by  citizens  of  the 
United  States,  when  attacked  by  foreign  governments  succeed- 
ing that  by  which  they  were  granted.  Title  to  land  and  landed 
improvements  is  by  the  law  of  nations,  a  continuous  right, 
not  subject  to  be  de vested  by  any  retroactive  legislation  of  new 
governments  taking  the  place  of  that  by  which  such  title  was 
lawfully  granted.  Of  course  it  is  not  intended  here  to  deny  the 
prerogative  of  a  conqueror  to  confiscate  for  political  offenses,  or 
to  withdraw  franchises  which  by  the  law  of  nations  can  be  with- 
drawn by  governments  for  the  time  being.  Such  prerogatives 
have  been  conceded  by  the  United  States  as  well  as  by  other  mem- 
bers of  the  family  of  nations  by  which  international  law  is  con- 
stituted. What,  however,  is  here  denied  is  the  right  of  any  gov- 
ernment to  declare  titles  lawfully  granted  by  its  predecessor  to 
be  vacated  because  they  could  not  have  been  lawfully  granted  if 
its  own  law  had,  at  the  time  in  question,  prevailed.  This  pre- 
tension strikes  at  that  principle  of  historical  municipal  continuity 
of  governments  which  is  at  the  basis  of  international  law."11 

§  272.  Samoan  and  Gilbert  Islands. — Mr.  Bayard  expressed' 
himself  similarly  when  the  operations  of  Germany  in  the  Samoan 
Islands  were  reported.  He  said  that  there  were  islands  in  the 
Pacific  Ocean  known  to  be  wholly  in  the  undisturbed  possession 
of  American  citizens  as  peaceable  settlers,  and  others  in  which 
American  citizens  have  established  themselves  in  common  with 
other  foreigners.  While  the  United  States  claimed  no  juris- 
dictional  right  by  reason  of  such  occupancy,  and  were  not 
called  upon  to  admit  it  in  the  case  of  like  occupancy  by  others, 
he  stated:  "What  we  think  we  have  a  right  to  expect,  and 
what  we  are  confident  will  be  cheerfully  extended  as  a  recog- 
nized right,  is  that  interests  found  to  have  been  created  in 
favor  of  peaceful  American  settlers  in  those  distant  regions  shall 
not  be  disturbed  by  the  assertion  of  exclusive  claims  of  terri- 
torial jurisdiction  on  the  part  of  any  power  which  has  never 
put  forth  any  show  of  administration  therein;  that  their  trade 
and  intercourse  shall  not  in  any  way  be  hampered  or  taxed  other- 
wise than  as  trade  and  intercourse  of  the  citizens  or  subjects  of 
the  power  asserting  such  exclusive  jurisdiction,  and  in  short,  that 

11  Mr.  Bayard,  Secretary  of  State,  Inst.  Chile,  XVII,  196,  200;  1  Moore 
to  Mr.  Roberts,  March  20,  1886,  MS.  Int.  L.  D.  422. 


313  TITLES  NOT  DEVESTED.  [§    273 

the  equality  of  their  tenancy  jointly  with  others  or  the  validity 
of  their  tenancy  where  they  may  be  the  sole  occupants,  shall  be 
admitted  according  to  the  established  principles  of  equity  and 
justice."  12  In  1892  Mr.  Foster,  Secretary  of  State,  wrote  to  Mr. 
White,  charge  at  London,  with  reference  to  the  extension  of  a 
protectorate  by  Great  Britain  over  the  Gilbert  Islands,  asking 
him  to  take  an  early  occasion  to  make  the  views  expressed  by 
him  known  to  Lord  Roseberry.  "You  will  say  to  him  that  the 
government  believes  that  it  has  a  right  to  expect  that  the  inter- 
ests of  the  American  citizens  established  in  the  Gilbert  Islands 
will  be  as  fully  respected  and  confirmed  under  her  Majesty's 
protectorate  as  they  could  have  been  had  the  United  States 
accepted  the  office  of  protection  not  long  since  solicited  by  the 
rulers  of  those  islands. "  To  this  Lord  Roseberry  replied  that  the 
rights  and  interests  of  American  citizens  would  be  fully  recog- 
nized and  respected  by  the  British  authorities.13 

§  273.  Titles  not  devested. — Where  a  grant  of  land  in  Florida 
was  binding  upon  Spain  before  the  acquisition  of  Florida,  it  is 
also  binding  in  the  United  States.14  The  cession  of  Texas  did  not 
devest  the  title  of  a  citizen  of  Mexico  to  lands.15  When  New 
Mexico  was  acquired,  the  people  retained  their  private  vested 
rights  and  all  other  rights  originating  in  contract  or  usage  and 
which  were  not  in  conflict  with  the  laws  of  the  United  States.16 
A  title  is  valid  which  was  acquired  under  a  Spanish  grant,  after 
the  cession  of  Louisiana  to  the  United  States,  but  before  the  tak- 
ing of  possession.17  When  Texas  acquired  its  independence,  alien- 
age alone  did  not  forfeit  the  title  to  land  in  that  state.18 

12  Mr.  Bayard,  Secretary  of  State,  Bayard,    Secretary   of    State,    to    Mr. 

to  Mr.  Pendleton,  February  27,  1886,  Von    Alvensteben,    German    Minister, 

MS.    Inst.     Germany,    XVII,    602 ;    1  March  4,  1886,  For.  Eel.  1886,  333. 
Moore     Int.     L.     D.     423.     Similar  "  For.  Eel.   1892,  237,   239,   246. 

expressions      were      made      by      Mr.  14  United  States  v.  Clarke,  16  Pet. 

Bayard    in    reference    to     the     exer-  ^U.  S.)  232,  10  L.  ed.  947. 
cise    of    a    protectorate    by    Portugal          13  Arihart    v.    Massieu,    98    U.    S. 

over  the  entire  sea  coast  of  Dahomey.  496,   25   L.   ed.   215. 
Mr.    Bayard,    Secretary    of    State,    to  1C  Leitensdorfer  v.  Webb,  20  How. 

the    Viscount    das    Nogueiras,    Portu-  177,   15  L.  ed.   891. 
guese  Minister,   March  3,    1886,   For.          *  Pollard   v.    Kibbe,    14    Pet.    375, 

Rel.  1886,  772 ;  and  also  in  reference  10  L.  ed.  501. 

to  the  placing  of  the  groups  known  as  18  Jones    v.    McMasters,    20    How. 

Marshall,  Brown  and  Providence  un-  (U.  S.)    20,   15  L.  ed.  810. 
der  the  protection  of  Germany.     Mr. 


274] 


TREATIES  OF  CESSION. 


The  act  of  Congress  confirming  a  title  which  existed  before  the 
territory  was  ceded  is  equivalent  in  its  effect  to  a  conveyance  of 
grant  or  quitclaim.19 

§  274.  Tide  lands  previously  granted. — In  the  United  States 
supreme  court  the  law  is  well  settled  that  absolute  property  in 
and  dominion  and  sovereignty  over  the  land  under  tide  waters 
in  the  original  states  were  reserved  to  the  several  states.  New 
states  admitted  into  the  Union  possess  the  same  rights,  sovereignty 
and  jurisdiction  in  relation  to  the  soils  under  tide  waters  as 
belong  to  the  original  states  within  their  respective  limits.20 
When  the  United  States  acquired  title  to  territory  from  Mexico, 
it  acquired  title  both  to  tide  lands  and  to  upland.  But  it  held 
the  title  to  the  tide  lands  only  in  trust  for  the  future  states  that 


19  Langdeau  v.  Hanes,  21  Wall.  527, 

22  L.  ed.  608.     For  various  cases  re- 
lating   to    the    effect    produced    upon 
the  rights  of  inhabitants  in  the  ceded 
territory  by  a  change  of  sovereignty 
see  Newhall  v.  Sanger,  92  U.  S.  761, 

23  L.    ed.    769;    Hornsby    v.    United 
States,  10  Wall.  (U.  S.)  224,  19  L.  ed. 
900 ;  Delassus  v.  United  States,  9  Pet. 
(U.  S.)  118,  9  L.  ed.  71;  Chouteau  v. 
United    States,    9    Pet.    (U.    S.)    138, 
9  L.  ed.  78 ;  Strother  v.  Lucas,  12  Pet. 
(U.   S.)    410,   9  L.   ed.   1137;    Slidell 
v.  Grandjean,  111  U.  S.  412,  4  Sup. 
Ct.  Kep.  475,  28  L.  ed.  321;   United 
States    v.    Moreno,    1    Wall.    (U.    S.) 
400,  17  L.  ed.  633 ;  Dent  v.  Emmeger, 
14  Wall.  308,  20  L.  ed.  838;  Bryan 
v.    Kennett,    113    U.    S.    179,    5    Sup. 
Ct.  Kep.  407,  28  L.  ed.  908;   United 
States  v.   Chaves,   159  U.'  S.  452,   16 
Sup.  Ct.  Eep.  57,  40  L.  ed.  215;  Kin- 
kead  v.  United  States,  150  U.  S.  483. 
14  Sup.  Ct.  Eep.  172,  37  L.  ed.  1152; 
Ainsa    v.    United    States,    161    U.    S. 
208,  16  Sup.  Ct.  Eep.  544,  40  L.  ed. 
673;   United  States  v.  Flint,  4  Saw. 
42,  25  Fed.  Gas.  No.  15,121,  affirmed, 
98  U.  S.  61 ;  Callsen  v.  Hope,  75  Fed. 
758;    Coburn  v.   San   Mateo   County, 


75  Fed.  520;  Muse  v.  Arlington  Hotel, 
68  Fed.  637;  May  v.  Specht,  1  Mich. 
187;  Puget  Sound  Agricultural  Co. 
v.  Pierce  County,  1  Wash.  Ter.  159; 
Eslava  v.  Doe,  7  Ala.  543;  Wood- 
worth  v.  Fulton,  1  Gal.  295;  Ferris 
v.  Coover,  10  Cal.  589;  Leese  v.  Clark, 
20  Cal.  388;  Ward  v.  Mulford,  32 
Cal.  365;  Thompson  v.  Doaksum,  68 
Cal.  593,  10  Pac.  199;  Wilson  v. 
Smith,  5  Yerg.  (Tenn.)  379;  McMul- 
len  v.  Hodge,  5  Tex.  34;  Trimble  v. 
Smithers,  1  Tex.  790;  Blair  v.  Odin,  3 
Tex.  288;  Paul  v.  Perez,  7  Tex.  338; 
Swift  v.  Herrera,  9  Tex.  263 ;  Jones  v. 
Montes,  15  Tex.  351;  Kilpatrick  v.  Sis- 
neros,  23  Tex.  113;  Maxey  v.  O'Con- 
nor, 23  Tex.  234;  Musquis  v.  Blake, 
24  Tex.  461;  Sabriego  v.  White,  30 
Tex.  576;  Ortiz  v.  De  Benavides,  61 
Tex.  60. 

20  Martin  v.  Waddell,  16  Pet.  367, 
10  L.  ed.  997;  Pollard  v.  Hagan,  3 
How.  212,  11  L.  ed.  565;  Goodtitle 
v.  Kibbe,  9  How.  471,  13  L.  ed. 
220;  Mumford  v.  Wardwell,  6  Wall. 
423,  18  L.  ed.  756;  Weber  v.  Harbor 
Commissioners,  18  Wall.  57,  21  L. 
ed.  798. 


315  GRANTS  IN  CASE  OF   DISPUTED  BOUNDARIES.  [§    275 

might  be  created  out  of  such  territory.  This  rule,  however,  has  no 
application  to  lands  previously  granted  to  other  parties  by  the 
former  government,  or  made  subject  to  trusts  requiring  some 
other  disposition  of  such  lands.  There  is  no  doubt  that  when 
California  was  acquired  from  Mexico  by  the  United  States,  under 
the  treaty  of  Guadalupe  Hidalgo,  the  United  States  was  obli- 
gated to  protect  all  rights  of  property  in  California  proceeding 
from  the  government  of  Mexico  before  the  execution  of  the 
treaty.21  The  eighth  article  of  that  treaty  contains  a  stipulation 
to  that  effect  ;22  but  even  if  such  provision  was  absent,  the  obliga- 
tions resting  upon  the  United  States,  in  so  far  as  the  protection 
of  property  right  is  concerned,  would,  under  the  principles  of 
international  law,  have  been  the  same.23 

§  275.     Grants  made  by  states  in  case  of  disputed  boundaries. — 

The  only  government  having  power  to  make  a  valid  grant  of 
lands  is  that  state  in  whose  territory  the  land  actually  lies,  and 
hence  grants  of  land  made  by  a  government  in  territory  over 
which  it  exercises  political  jurisdiction  de  facto,  but  to  which  it 
rightfully  has  no  claim,  are  not  valid  as  against  the  government 
which  has  the  right  to  exercise  jurisdiction  over  such  territory. 
In  the  case  of  disputed  boundaries  between  two  states,  the  title 
to  the  land  will  depend  upon  the  decision  ultimately  of  which 

-*  Knight  v.  United  States  Land  where,  before  cession  to  the  United 

Assn.,  142  U.  S.  184,  12  Sup.  Ct.  States  by  the  Mexican  government, 

Rep.  258,  35  L.  ed.  982 ;  Teschemacher  grants  were  made  by  the  latter.  Co- 

v.  Thompson,  18  Cal.  11,  79  Am.  burn  v.  United  States,  75  Fed.  528. 

Dec.  151;  Beard  v.  Federy,  3  Wall.  And  see  Tripp  v.  Spring,  5  Saw.  209, 

478,  18  L.  ed.  88;  San  Francisco  v.  24  Fed.  Gas.  No.  14,180;  Coburn  v. 

Le  Eoy,  138  U.  S.  656,  11  Sup.  Ct.  San  Mateo  County,  75  Fed.  520;  Peo- 

Kep.  364,  34  L.  ed.  1096.  pie  v.  San  Francisco,  75  Cal.  388,  17 

-  9  Stats,  at  Large,  922.  Pac.  522 ;  Valentine  v.  Sloss,  103  Cal. 

23  Knight  v.  United  States  Land  215,  37  Pac.  326;  Ward  v.  Mulford, 

Assn.,  142  U.  S.  184,  12  Sup.  Ct.  Eep.  32  Cal.  365;  Teschemaker  v.  Thomp- 

258,  35  L.  ed.  982 ;  Soulard  v.  United  son,  18  Cal.  11,  79  Am.  Dec.  151. 

States,  4  Pet.  511,  7  L.  ed.  938;  See,  also,  United  States  v.  Chaves, 

United  States  v.  Percheman,  7  Pet.  159  U.  S.  457,  16  Sup.  Ct.  Eep.  59, 

51,  8  L.  ed.  604;  Strother  v.  Lucas,  40  L.  ed.  218.  As  to  the  rights  re- 

12  Pet.  410,  9  L.  ed.  1137;  United  served  of  Indians  in  parts  of  ter- 

States  v.  Eepentigny,  5  Wall.  211,  18  ritory  ceded  to  the  government,  see 

L.  ed.  627.  Title  to  tide  lands  in  Godfrey  v.  Beardsley,  2  McLean,  418, 

California  is  in  the  state,  except  Fed.  Gas.  No.  5497. 


§  275] 


TREATIES  OF  CESSION. 


316 


state  had  jurisdiction.  When  the  disputed  boundary  is  adjusted 
and  settled,  grants  previously  made  by  either  state  of  lands 
claimed  by  it,  and  over  which  it  has  exercised  political  sover- 
eignty, but  which,  on  the  final  adjustment  of  the  boundary,  are 
determined  to  be  within  the  limits  of  the  other  state,  are  void 
unless  confirmed  by  the  latter  state.  Even  if  such  confirmation 
should  be  made,  it  cannot  injure  the  title  of  the  same  lands  which 
the  latter  state  itself  had  previously  granted.24 


24  Coffee  v.  Groover,  123  U.  S.  10, 
8  Sup.  Ct.  Eep.  5,  31  L.  ed.  56.  The 
supreme  court  of  Florida  held  that 
grants  in  a  disputed  territory,  by  a 
government  exercising  sovereign  ju- 
risdiction in  such  state,  were  valid 
and  to  be  sustained,  notwithstanding 
that  by  a  subsequent  settlement  of 
boundaries,  the  disputed  territory  is 
conceded  to  the  other  contesting  sover- 
eign. The  supreme  court  of  the 
United  States  reversed  the  judgment, 
Mr.  Justice  Bradley,  who  delivered  the 
opinion  of  the  court,  saying:  "It 
is  no  doubt  the  received  doctrine, 
that  in  cases  of  ceded  or  conquered 
territory,  the  rights  of  private  prop- 
erty in  lands  are  respected.  Grants 
made  by  the  former  government, 
being  rightful  when  made,  are 
not  usually  disturbed.  Allegiance  is 
transferred  from  one  government  to 
the  other  without  any  subversion  of 
property.  This  doctrine  has  been  laid 
down  very  broadly  on  several  occa- 
sions by  this  court — particularly  in 
cases  arising  upon  grants  of  land 
made  by  the  Spanish  and  other  gov- 
ernments in  Louisiana  and  Florida 
before  those  countries  were  ceded  to 
the  United  States.  It  is  true  that 
the  property  rights  of  the  people,  in 
those  cases,  were  protected  by  stipu- 
lations in  the  treaties  of  cession,  as 
is  usual  in  such  treaties;  but  the 
court  took  broader  ground,  and  held, 
as  a  general  principle  of  interna- 
tional law,  that  a  mere  cession  of 


territory  only  operates  upon  the  sov- 
ereignty and  jurisdiction,  including 
the  right  to  the  public  domain,  and 
not  upon  the  private  property  of  in- 
dividuals which  had  been  segregated 
from  the  public  domain  before  the 
cession.  This  principle  is  asserted 
in  the  cases  of  United  States  v.  Ar- 
redondo,  6  Pet.  691,  8  L.  ed.  547; 
United  States  v.  Percheman,  7  Pet. 
Rl,  86-89,  8  L.  ed.  604;  Delassus  v. 
United  States,  9  Pet.  117,  9  L.  ed. 
71;  Strother  v.  Lucas,  12  Pet.  410, 
428,  9  L.  ed.  1137;  Doe  v.  Eslava,  9 
How.  421,  13  L.  ed.  200;  Jones  v. 
McMasters,  20  How.  8,  17,  15  L.  ed. 
805,  and  Leitensdorfer  v.  Webb,  20 
How.  176,  15  L.  ed.  891.  In  United 
States  v.  Percheman,  Chief  Justice 
Marshall  said:  'It  may  not  be  un- 
worthy of  remark  that  it  is  very 
unusual,  even  in  cases  of  conquest, 
for  the  conqueror  to  do  more  than 
to  displace  the  sovereign  and  assume 
dominion  over  the  country.  The  mod- 
ern usage  of  nations,  which  has  be- 
come law,  would  be  violated;  that 
sense  of  justice  and  of  right  which  is 
acknowledged  and  felt  by  the  whole 
civilized  world  would  be  outraged,  if 
private  property  should  be  generally 
confiscated,  and  private  rights  an- 
nulled. The  people  change  their  al- 
legiance; their  relation  to  their  an- 
cient sovereign  is  dissolved;  but  their 
relations  to  each  other,  and  their 
rights  of  property,  remain  undis- 
turbed. If  this  be  the  modern  rule 


317 


WHAT   ARE   PROPERTY    RIGHTS. 


[§  276 


§  276.  What  are  property  rights. — While  there  can  be  no 
doubt  that  inhabitants  of  a  ceded  territory  are  entitled  to  pro- 
tection in  the  full  enjoyment  of  their  property,  the  question  has 
sometimes  arisen  as  to  what  are  property  rights.  Preliminarily, 
we  can  do  no  better  than  to  quote  the  language  of  Mr.  Chief 
Justice  Marshall,  who,  in  an  early  case  involving  the  protection 
given  by  treaty,  said:  "The  term  'property,'  as  applied  to  lands, 
comprehends  every  species  of  title  inchoate  or  complete.  It  is 
supposed  to  embrace  those  rights  which  lie  in  contract;  those 
which  are  executory,  as  well  as  those  which  are  executed.  In 
this  respect,  the  relation  of  the  inhabitants  to  their  government 
is  not  changed.  The  new  government  takes  the  place  of  that  which 
has  passed  away. ' ' 52 

An  adverse  homestead  entry  will  not  affect  a  grant  in  Michigan 
territory,  which  in  accordance  with  the  provisions  of  Jay's  treaty 
is  subsequently  confirmed  by  the  United  States.26  The  law,  as 
well  as  the  treaty  of  Guadalupe  Hidalgo,  protects  titles  perfected 
under  Spanish  or  Mexican  grants,27  and  grants  made  by  Mexican 


even  in  cases  of  conquest,  who  can 
doubt  its  application  .to  the  case  of 
an  amicable  cession  of  territory? 
Had  Florida  changed  its  sovereign 
by  an  act  containing  no  stipulation 
respecting  the  property  of  individ- 
uals, the  right  of  property  in  all 
those  who  became  subjects  or  citizens 
of  the  new  government  would  have 
been  unaffected  by  the  change.'  7 
Pet.  86,  87,  8  L.  ed.  604. 

"But  whilst  this  is  the  acknowl- 
edged rule  in  cases  of  ceded  and 
even  conquered  territory,  with  regard 
to  titles  acquired  from  a  former  sov- 
ereign who  had  undoubted  right  to 
create  them,  it  does  not  apply  (as 
we  shall  see)  to  cases  of  disputed 
boundary,  in  relation  to  titles  cre- 
ated by  a  sovereign  in  possession,  but 
not  rightfully  so.  In  the  latter  case, 
when  the  true  boundry  is  ascertained, 
or  adjusted  by  agreement,  grants 
made  by  either  sovereign  beyond 


the  limits  of  his  rightful  territory, 
whether  he  had  possession  of  not  (un- 
less confirmed  by  proper  stipulations), 
fail  for  want  of  title  in  the  grantor. 
This  is  the  general  rule.  Circum- 
stances may  possibly  exist  which 
would  make  valid  the  grants  of  a 
government  de  facto;  as,  for  example, 
where  they  contravene  no  other  rights. 
Grants  of  public  domain  made  by 
Napoleon  as  sovereign  de  facto  of 
France  may  have  had  a  more  solid 
basis  of  legality  than  similar  grants 
made  by  him  as  sovereign  de  facto 
of  a  Prussian  province,  derogatory 
to  the  rights  of  the  government  and 
King  of  Prussia. ' '  Coffee  v.  Groover, 
123  U.  S.  10,  8  Sup.  Ct.  Eep.  5,  31 
L.  ed.  56. 

25  Soulard  v.  United  States,  4  Pet. 
512,  7  L.  ed.  938. 

*  Sanborn  v.  Vance,  69  Mich.  226, 
37  N.  W.  273. 

27  Minturn  v.  Brower,  24  Cal.  644. 


§§    277,    278]  TREATIES   OP   CESSION.  318 

officers  in  compliance  with  the  Mexican  laws  applicable  to  Cali- 
fornia are  valid.28 

§  277.  Subsequent  acts  of  Congress. — Subsequent  acts  of  Con- 
gress confirming  Spanish  concessions  for  the  shore  will  not  impair 
riparian  rights  of  lot  owners  who  have  bought  in  accordance  with 
prior  acts  of  Congress;29  but  a  title  to  land  in  Louisiana,  which 
is  completed  by  a  grant  from  the  crown  of  Spain,  will  overcome 
a  title  claimed  under  an  act  of  Congress.30 

It  was  held  that  a  grant  made  by  the  British  government  is 
valid  notwithstanding  the  fact  that  as  subsequently  established 
by  treaty  the  land  lies  within  the  boundaries  of  the  United 
States.31  Where  a  grant  has  been  perfected  under  Spanish  au- 
thority, the  land  affected  became  private  property.  Conse- 
quently, upon  the  cession  of  Louisiana  such  land  did  not  pass 
to  the  United  States.32  A  change  of  sovereignty  will  not  defeat 
the  title  of  Pueblo  Indians  to  lands.33  Until  a  legislative  enact- 
ment makes  a  contrary  provision,  a  ceded  territory  will  retain 
its  system  of  laws.34 

§  278.  Property  includes  every  species  of  title. — The  term 
"property"  used  in  treaties  of  cession  includes  every  species  of 
title,  inchoate  or  complete,  legal  or  equitable,  and  comprehends 
rights  which  lie  in  contract,  executory  as  well  as  executed.35  The 
rights  of  private  property  were  not  impaired  by  the  cession  of 
California  to  the  United  States,  and  the  act  of  Congress  to  as- 
certain and  settle  private  land  claims  in  that  state  was  passed 
for  the  purpose  of  assuring  to  the  inhabitants  of  the  territory 
ceded  the  benefit  of  the  rights  of  property  which  the  treaty 
secured  to  them.  This  act  recognized  both  legal  and  equitable 
rights,  and  the  court  held  that  it  should  be  administered  in  a 
liberal  spirit.36  All  incomplete  title  acquired  in  a  ceded  territory 

28  Reynolds    v.    West,    1    Cal.    326;  nett   v.   Barnett,   9   N.   Mex.    205,   50 
Vanderslice    v.    Hanks,    3    Cal.    38.  Pac.    337;    Chavez    v.    Chavez,    7    N. 

29  Abbots  v.  Kennedy,  5  Ala.  396.  Mex.   69,   32  Pac.   140. 

30  Hall  v.  Eoot,   19   Ala.   386.  35  Bryan  v.  Kennett,  113  U.  S.  179, 

31  Little  v.  Watson,   32  Me.   214.  5  Sup.  Ct.  Eep.  407,  28  L.  ed.  908. 

32  Roussin   v.   Parks,   8    Mo.    539.  36  United  States  v.  Moreno,  1  Wall. 

33  United    States    v.    Lucero,    1    N.  (U.  S.)  400,  17  L.  ed.  633.     Cited  in 
Mex.   429.  Town  v.  De  Haven,  5  Saw.  149,  Fed. 

34  Browning  v.  Browning,  3  N.  Mex.  Cas.   No.    14,113;    Crystal   etc.   Co.   v. 
467    (371)    [659],   9   Pac.   677;    Bar-  Los  Angeles,  76  Fed.  153. 


319  COPYRIGHTS,  PATENTS  AND  TRADEMARKS.  [§    279 

prior  to  a  treaty  is  such  a  property  interest  as  can  be  transferred 
by  mortgage  or  reached  by  judicial  process.37 

Spain,  while  in  possession  of  territory  afterward  ceded,  had 
power  to  make  grants  founded  on  any  consideration,  and  had  ab- 
solute discretion  to  impose  any  restriction.38  Property  rights 
were  not  devested  by  the  revolutions  in  Texas.39 

§  279.  Copyrights,  patents  and  trademarks. — Copyrights  and 
patents  may  be  protected  under  treaties  of  cession,  though  the  law 
of  the  United  States  may  not  give  similar  rights.  It  was  pro- 
vided in  article  XIII  of  the  treaty  of  peace  between  the  United 
States  and  Spain  of  December  10,  1898,  that  the  rights  of  prop- 
erty secured  by  copyrights  and  patents  acquired  by  Spaniards  in 
Cuba,  Porto  Rico  and  the  Philippines  should  be  respected.  A 
patent  or  license  had  been  granted  on  July  11,  1898,  to  a  Spaniard 
for  the  manufacture  of  hemp  by  steam  in  the  Philippines  for  a 
period  of  five  years.  In  the  opinion  of  the  attorney  general  of 
the  United  States  this  patent  was  protected  by  the  treaty  if  it 
was  valid  under  Spanish  law,  as  the  laws  of  Spain  concerning 
industrial  property  were  in  the  contemplation  of  the  framers  of 
this  article  of  the  treaty.  In  the  English  copy  of  the  treaty, 
article  XIII  provided  that:  "The  rights  of  property  secured  by 
copyrights  and  patents  acquired  by  Spaniards  in  the  island  of 
Cuba,  and  in  Porto  Rico,  the  Philippines,  and  other  ceded  terri- 
tories, at  the  time  of  the  exchange  of  the  ratifications  of  this  treaty, 
shall  continue  to  be  respected,"  while  in  the  Spanish  copy  the 
article,  instead  of  "rights  of  property  secured  by  copyrights  and 
patents  acquired  by  Spaniards,"  reads,  "the  rights  of  property, 
literary,  artistic,  and  industrial,  acquired  by  Spaniards. ' ' 40 

37  Bryan  v.  Kennett,  113  U.  S.  179,  treaty  in  Spanish,  like  the  law  of  1878, 
5   Sup.  Ct.  Eep.  407,  28  L.  ed.  908.  speaks     of     industrial     property.     It 
See,  also,  Doe  v.  Latimer,  2  Fla.  71.  concerns  only  Spanish  rights  acquired 

38  United  States  v.  Clarke,  16  Pet.  under  Spanish  laws;  and  the  framers 
(U.  S.)  228,  10  L.  ed.  946.  of  it  must  be  presumed  to  have  known 

39  Trimble  v.  Smithers,  1  Tex.  790;  something   of   those    rights    and   laws 
Ortiz   v.   De   Benavides,   61    Tex.    60;  of  which  they  were  treating,  and  to 
Sabriego     v.    White,    30     Tex.    576;  have  had  in  mind  such  laws  as  that  of 
Maxey  v.    O'Connor,    23    Tex.    234;  July   30,    1878,   corresponding   to   our 
Jones  v.  Montes,  15  Tex.  351.  laws  relating  to  patents.     In  English, 

40  22     Op.    Attys.    Gen.    617.     Mr.  the    words    'industrial    property7    be- 
Griggs,  Attorney  General,  said :  ' '  The  come  '  patents. '     I  think  it  reasonable 


§    280]  TREATIES  OF  CESSION.  320 

The  treaty  between  Spain  and  the  United  States  of  December 
10,  1898,  protects  rights  of  property  in  trademarks  in  Cuba  and 
the  Philippines,  as  they  are  included  in  the  term  "property  of 
all  kinds."  Where  trademarks  had  been  registered  prior  to  the 
execution  of  the  treaty  in  the  international  registry  at  Berne,  they 
are  entitled  to  the  same  recognition  and  protection  from  the 
military  governments  of  Cuba  and  the  Philippines  as  are  trade- 
marks which  have  been  registered  in  the  national  registry  at 
Madrid,  or  in  one  of  the  provincial  registeries  of  the  islands.41 

§  280.  Loss  of  trademarks  by  laches. — The  treaty  between  the 
United  States  and  Hungary  did  not  abrogate  the  right  acquired 
by  the  public  through  the  laches  of  a  Hungarian  merchant  to 
use  his  trademark  and  trade  name,  when  such  trademark  and 
trade  name  are  secured  to  him  in  Hungary  by  the  operation  of  a 
subsequent  law  of  that  country.  The  fact  that  such  a  merchant 
sold  his  entire  product  to  a  single  person,  allowing  him  to  dis- 
tribute the  goods  to  the  trade,  cannot  defeat  the  imputation  of 
knowledge  on  his  part  as  to  the  conditions  governing  the  protec- 
tion of  trademarks.42  "If  he  wished  to  hold  on  to  his  trade 
name  and  trade  label  in  this  country,"  said  Judge  Lacombe,  "he 
should  either  have  taken  steps  to  advise  himself  as  to  the  situa- 
tion, or  should  have  seen  to  it  that  his  selected  vendee,  who 
shared  with  him  in  his  monopoly,  took  proper  action  to  maintain 
his  rights."43 

to  infer  from  these  things  that  the  **  Saxlehner  v.  Eisner,  63  U.  S. 
article  was  drawn  up  with  a  view  to  App.  139,  33  C.  C.  A.  291,  91  Fed. 
embracing  property  recognized  by  the  536,  affirming  88  Fed.  61.  A  rehear- 
Spanish  laws  which  correspond  with  ing  was  denied,  91  Fed.  539,  63  U.  S. 
our  patent  laws,  even  if  that  property  App.  145,  33  C.  C.  A.  291.  Long-- 
was not  identical  with  that  recognized  continued  delay  or  acquiescence  will 
by  our  laws.  I  see  nothing  in  the  defeat  the  right.  Menendez  v.  Holt, 
nature  of  the  right  claimed,  in  that  it  128  U.  S.  514,  9  Sup.  Ct.  Eep.  143, 
might  be  objected  to  as  a  monopoly,  32  L.  ed.  526. 

to  cause  a  different  interpretation  of  43  Saxlehner   v.    Eisner,    supra.     On 

the  treaty  or  to  prevent  that  article  rehearing   the   court   said:    ''We   are 

of  the  treaty    from    being    constitu-  unable    to    assent   to    the   proposition 

tional  and  obligatory. ' '  that  the  provisions  of  the  treaty  are  to 

41  Mr.   Magoon,   Law   Officer,  Divi-  be  construed  so  as  to  hold  that  when 

sion  of  Insular  Affairs,  War  Depart-  the    public    in    this    country    has    ac- 

ment,  March  27,  1901,  Magoon 's  Eep.  quired,    through    the    owner's    laches, 

305.  the  right  to  use  a  trade  name  and  a 


321 


POLITICAL  DEPARTMENT   TO  PROVIDE   MODE. 


§  281 


§  281.  Political  department  to  provide  mode. — The  perfection 
of  incomplete  titles  in  the  ceded  territory  is  a  right  or  duty  be- 
longing to  or  imposed  upon  the  political  department  of  the  gov- 
ernment, and  while  such  duty  may  by  legislative  action  be  placed 
upon  the  courts,  it  is  the  primary  duty  of  the  political  power  to 
establish  proper  means  for  their  ascertainment  and  confirma- 
tion.44 Whether  a  claimant  has  an  absolute  ownership  or  a  mere 
equitable  interest  is  immaterial.  His  rights  are  entitled  to  pro- 
tection, and  are  not  affected  by  a  change  of  sovereignty  and  jur- 
isdiction. The  duty,  however,  of  providing  a  mode  for  securing 


trademark,  such  right  is  abrogated 
whenever,  by  the  operation  of  some 
subsequent  Hungarian  law  the  trade 
name  and  trademark  is  secured  to  him 
in  Hungary."  91  Fed.  539,  33  C. 
C.  A.  291. 

44  Beard  v.  Federy,  3  Wall.  (U.  S.) 
478,  18  L.  ed.  88;  Chouteau  v.  Eck- 
hart,  2  How.  (U.  S.)  344,  11  L.  ed. 
293;  De  la  Croix  v.  Chamberlain,  12 
Wheat.  (U.  S.)  599,  6  L.  ed.  741; 
Glenn  v.  United  States,  13  How.  (U. 
S.)  250,  14  L.  ed.  133;  United  States 
v.  King,  3  How.  (U.  S.)  773,  11  L. 
ed.  824;  Tameling  v.  United  States 
Freehold  etc.  Co.,  93  U.  S.  644,  23  L. 
ed.  998;  Les  Bois  v.  Bramwell,  4 
How.  (U.  S.)  449,  11  L.  ed.  1051; 
Burgess  v.  Gray,  16  How.  (U.  S.)  48, 
14  L.  ed.  839;  Maguire  v.  Tyler,  8 
Wall.  (U.  S.)  650,  19  L.  ed.  320; 
Dent  v.  Emmeyer,  14  Wall.  308,  20  L. 
ed.  838;  Craig  v.  Leitensdorfer,  123 
U.  S.  189,  8  Sup.  Ct.  Eep.  85,  31  L. 
ed.  114;  Knight  v.  United  States 
Land  Assn.,  142  U.  S.  161,  12  Sup. 
Ct.  Eep.  258,  35  L.  ed.  974;  Ainsa  v, 
New  Mexico  etc.  E.  Co.,  175  U.  S. 
76,  20  Sup.  Ct.  Eep.  28,  44  L.  ed. 
78;  Thompson  v.  Los  Angeles  Farm- 
ing etc.  Co.,  180  U.  S.  72,  21  Sup.  Ct. 
Eep.  289,  45  L.  ed.  432 ;  United  States 
v.  Baca,  184  U.  S.  653,  22  Sup.  Ct. 
Eep.  541,  46  L.  ed.  733;  Town  v.  De- 
Treaties — 21 


Haven,  5  Saw.  146,  24  Fed.  Cas.  No. 
14,113;  Montgomery  v.  Beavans,  1 
Saw.  653,  17  Fed.  Cas.  No.  9735; 
United  States  v.  Flint,  4  Saw.  42,  25 
Fed.  Cas.  No.  15,121;  United  States 
v.  Parrott,  Me  All.  447,  27  Fed.  Cas. 
Nos.  15,998,  15,999;  United  States  v. 
Peralta,  99  Fed.  618,  102  Fed.  1006; 
Leese  v.  Clark,  3  Cal.  17,  20  Cal.  387; 
Thompson  v.  Doaksum,  68  Cal.  593, 
10  Pac.  199 ;  Chepley  v.  Farris,  45  Cal. 
538;  Banks  v.  Moreno,  39  Cal.  246; 
Stevenson  v.  Bennett,  35  Cal.  432; 
Steinbach  v.  Moore,  30  Cal.  507;  De 
Arguello  v.  Greer,  26  Cal.  638;  Min- 
turn  v.  Brower,  24  Cal.  644;  Eico  v. 
Spence,  21  Cal.  504;  Estrada  v.  Mur- 
phy, 19  Cal.  269;  Doe  v.  Higgins,  39 
Ala.  9;  Hall  v.  Eoot,  19  Ala.  378; 
Doe  v.  Jones,  11  Ala.  63;  Nixon  v. 
Houillon,  20  La.  Ann.  515;  Tucker  v. 
Burris,  13  La.  Ann.  614;  Purvis  v. 
Elarmanson,  4  La.  Ann.  421;  Lobdell 
v.  Clark,  4  La.  Ann.  99;  Charleville 
v.  Chouteau,  18  Mo.  493;  Newman  v. 
Lawless,  6  Mo.  279;  Chavez  v.  De 
Sanchez,  7  N.  Mex.  58,  32  Pac.  137; 
Catron  v.  Laughlin,  UN.  Mex.  604,  72 
Pac.  26;  Waddingham  v.  Eobledo,  6 
N.  Mex.  347,  28  Pac.  662;  Grant  v. 
Jaramillo,  6  N.  Mex.  313,  28  Pac.  508; 
Cowenia  v.  Hannah,  3  Or.  465;  White 
v.  Martin,  66  Tex.  341,  17  S.  W.  727; 
Miller  v.  Bronson,  50  Tex.  591;  Pas- 


§    282]  TREATIES  OF  CESSION.  822 

those  rights  appertains  to  the  political  department  of  the  gov- 
ernment.45 

§  282.  Delegation  to  judicial  department. — Congress  may 
perform  that  duty  either  by  itself  or  it  may  delegate  it  to  the 
judicial  department.46  A  private  claim  under  the  acts  of  Con- 
gress relating  to  lands  in  Arizona  under  a  Mexican  grant,  which 
has  been  reported  to  Congress  by  the  surveyor-general  of  the  ter- 
ritory, cannot  be  contested  in  the  courts  before  action  by  Congress 
on  his  report.47 

Unless  Congress  has  otherwise  provided,  a  survey  made  by  the 
land  department  within  the  scope  of  its  authority  of  a  confirmed 
Mexican  grant  is  unassailable  in  the  courts  in  a  collateral  pro- 
ceeding.48 "It  has  often  been  held  by  this  court  that  the  judicial 
tribunals,  in  the  ordinary  administration  of  justice,  had  no  juris- 
diction or  power  to  deal  with  these  incipient  claims,  either  as 
to  fixing  boundaries  by  survey,  or  for  any  other  purpose;  but 
that  claimants  were  compelled  to  rely  upon  Congress,  on  which 
power  was  conferred  by  the  Constitution  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  and 
property  of  the  United  States.  Among  these  needful  regulations 
was  that  of  providing  that  these  unlocated  claims  should  be  sur- 
veyed by  lawful  authority;  a  consideration  that  has  occupied 
a  prominent  place  in  the  legislation  of  Congress  from  an  early 
day."49 

chal  v.  Dangerfield,  37  Tex.  273 ;  Wai-  Co.,  148  U.  S.  80,   13   Sup.  Ct.  Eep. 

ters  v.  Jewett,  28  Tex.  192;   Peck  v.  457,  37  L.   ed.   377;    De  la  Croix  v. 

Moody,    23     Tex.    93;     Hamilton    v.  Chamberlain,  12  Wheat.   (U.  S.)   599, 

A  very,  20  Tex.  612;   Patton  v.  Skid-  6  L.  ed.  741;  Botiller  v.  Dominguez, 

more,   19   Tex.  533;    Hancock  v.   Me-  130  U.  S.  238,  9  Sup.  Ct.  Rep.  525, 

Kinney,  7  Tex.  384;  Paschal  v.  Perez,  32  L.  ed.  926. 

7  Tex.  348;  Howard  v.  Perry,  7  Tex.  "  Astiazaran  v.   Santa   Eita   Min. 

259;    Hughes   v.    Lane,    6    Tex.    289;  Co.,  148  U.   S.   80,   13   Sup.   Ct.  Eep. 

.Tones  v.  Borden,  5  Tex.  410;  McMul-  457,  37  L.  ed.  377. 

len  v.  Hodge,  5  Tex.  34;  Kemper  v.  4S  Stoneroad  v.  Stoneroad,  158  U. 

Victoria,  3  Tex.  135;  Norton  v.  Gen-  S.  248,   15  Sup.  Ct.  Eep.   822,  39  L. 

eral  Land  Office  Commissioner,  2  Tex.  ed.  969. 

357;    Jones  v.   Menard,   1   Tex.   771;  49  West  v.   Cochran,   58  U.   S.    (17 

Trimble  v.  Smithers,  1  Tex.  790.  How.)    403,   15   L.   ed.    110,   per  Mr. 

45  Tameling  v.  United  States  Free-  Justice     Catron,     speaking      for     the 

hold  etc.  Co.,  93  U.  S.  644,  23  L.  ed.  court.    Mr.  Justice  Lamar  said :  ' '  It  is 

998.  a    well-settled   rule    of    law   that    the 

48  Astiazaran  v.   Santa   Eita  Min.  power  to  make  and  correct  surveys  of 


323  INCOMPLETE  TITLES  NOT  MADE  COMPLETE.  [§    283 

While  the  supreme  court  of  the  United  States  under  the  judi- 
ciary act  of  1789  had  no  jurisdiction  to  examine  a  perfect  Spanish 
title,  and  decide  whether  due  effect  had  been  given  to  it  by  the 
state  court,  yet  if  an  imperfect  Spanish  title  has  been  acted  on 
by  Congress,  and  the  supreme  court  of  the  United  States  is  called 
upon  to  review  the  decision  of  a  state  court,  the  Spanish  title 
must  be  examined  for  the  purpose  of  determining  what  effect 
was  produced  upon  it  by  the  act  of  Congress.50 

§  283.  Incomplete  titles  not  made  complete. — The  treaty  by 
which  Louisiana  was  acquired  did  not  make  incomplete  titles 
complete.  The  government  of  the  United  States  became  the 
successor  to  the  crown  of  Spain  in  its  powers  and  duties  as  to 
confirmations  of  such  titles,  and  might  select  between  two  ad- 
verse claimants  and  give  a  perfect  title  to  one  and  absolutely 
exclude  the  other.51  The  local  courts  of  a  territory  have  no 
power  to  adjudicate  the  title  claimed  under  a  Spanish  grant 
when  the  title  to  the  property  under  the  treaty  of  Guadalupe 
Hidalgo  and  the  act  of  Congress  was  sub  judice,  the  claimants 
proceeding  under  the  act  before  the  surveyor-general  and  Con- 
gress.52 Until  Congress  gives  to  inchoate  rights  of  imperfect 
obligation  a  vitality  and  an  effect  which  they  did  not  before 
possess,  they  are  of  such  a  nature  that  they  cannot  be  recognized 
nor  enforced  in  a  court  of  law  or  equity.  When  confirmation 
was  made  by  Congress,  such  rights  took  their  effect  wholly  from 
the  act  of  confirmation,  and  not  from  any  element  derived  from 
antecedent  sovereignty  which  entered  into  their  existence,  and 
hence  the  title  of  an  elder  confirmee  was  better  than  that  of  a 
younger,  without  regard  to  the  date  of  the  origin  of  their  re- 
spective claims  or  the  circumstances  by  which  they  were  at- 
tended.53 

the    public    lands    belongs    exclusively  30  Chouteau  v.  Eckhart,  2  How.  (U. 

to  the  political  department  of  the  gov-  S.)  344,  11  L.  ed.  293. 

ernment,  and  that  the  action  of  that  51  Chouteau  v.  Eckhart,  2  How.  (U. 

department,   within   the   scope   of   its  S.)  344,  11  L.  ed.  293. 

authority,  is  unassailable  in  the  courts  52  Eio  Arriba  Land  &  Cable  Co.  v. 

except     in     a      direct     proceeding."  United  States,  167  U.  S.  298,  17  Sup. 

Knight  v.  United  Land  Assn.,  142  U.  Ct.  Eep.  875,  42  L.  ed.  175. 

S.  161,  12  Sup.  Ct.  Eep.  258,  35  L.  ed.  ra  Dent  v.  Emmeger,  14  Wall.  308, 

974;  Cragin  v.  Powell,  128  U.  S.  691,  20  L.  ed.  838. 

9  Sup.  Ct.  Eep.  203,  32  L.  ed.  566. 


§§    284,    285]  TREATIES   OF   CESSION.  324 

§  284.  Grant  deemed  abandoned. — If  the  land  is  held  by  a 
title  imperfect  or  equitable  merely,  under  a  Mexican  coloniza- 
tion grant  in  the  usual  form,  which  required  approval  of  the  De- 
partmental Assembly,  and  judicial  possession  from  the  magistrate 
of  the  vicinage,  and  which  was  for  a  certain  quantity  of  land 
within  exterior  limits  embracing  a  much  greater  quantity,  the 
grant,  unless  it  is  presented  for  confirmation  to  the  United  States 
Board  of  Land  Commissioners,  will  be  deemed  abandoned. 
Whatever  may  have  been  its  original  validity,  the  courts  will 
treat  it  as  nonexistent.  When  a  person  bases  a  claim  upon  the 
unconfirmed  grant,  the  land  will  be  regarded  as  public  land  of  the 
United  States.54  It  is  only  by  a  patent,  or  a  survey  confirmed 
in  accordance  with  the  act  of  Congress,  that  the  claimant  of  a 
Mexican  grant,  whose  title  is  not  perfect,  acquires  a  perfect  title.55 

§  285.  Collateral  attack. — A  patent  thus  issued  for  a  Mexican 
grant  of  land  becomes  a  record  equally  binding  the  government, 
the  claimant  and  those  deriving  title  through  him.  It  is  not  sub- 
ject to  collateral  attack,  but  can  be  assailed  only  by  direct  pro- 
ceedings instituted  for  that  purpose.56  A  concession  will  not 
confer  upon  the  grantee  a  perfect  title  to  any  specific  parcel  of 
land  in  the  absence  of  anything  in  the  grant  or  in  the  docu- 
ments to  which  it  refers  by  which  to  fix  the  lines  of  one  of  the 
sides  of  the  tract  intended  to  be  conveyed,  or  to  determine  the 
particular  quantity.  It  must  appear,  on  the  face  of  the  instru- 
ment, or  by  the  aid  of  its  descriptive  portions,  not  only  that 
it  was  intended  to  grant  a  specific  parcel,  but  the  description 
must  be  such  that  the  particular  tract  intended  to  be  granted 
can,  with  reasonable  certainty,  be  identified.57  A  Mexican  grant 
is  inchoate  or  imperfect  where  a  survey,  or  judicial  possession 
by  competent  authority,  was  necessary  in  order  to  attach  it  to 
any  specific  tract  of  land.58  Where  the  United  States  has  recog- 
nized and  confirmed  the  validity  of  a  claim  under  a  Mexican 
grant,  and  issued  a  patent  to  the  claimant,  the  rights  of  the 

54  Estrada  v.  Murphy,  19  Cal.  248.  5T  Banks  v.  Moreno,  39  Cal.  233. 

55  Chipley  v.  Farris,  45  Cal.  527.  58  Steinbach  v.  Moore,  30  Cal.  498. 

56  Chipley  v.  Farris,  45  Cal.  527. 


325  PERFECTED     CLAIMS    BEFORE    LAND     COMMISSION.  [§    286 

patentee  cannot  be  questioned,  either  in  law  or  in  equity,  by  an- 
other who  relies  solely  upon  an  opposing  unconfirmed  grant  from 
the  Mexican  government.  Even  if  the  patentee  obtained  a  con- 
firmation of  his  claim  with  knowledge  of  the  claim  of  the  other, 
no  equities  could  arise  in  favor  of  the  latter  from  such  knowledge, 
nor  was  the  patentee  affected  by  such  knowledge  with  a  notice 
of  any  equitable  rights  of  the  other  claimant.59  But  it  was 
necessary  to  submit  only  inchoate  and  imperfect  titles  for  con- 
firmation. Change  of  sovereignty  did  not  affect  titles  which  had 
been  acquired  and  established  from  the  governments  of  either 
Spain  or  Mexico.  Persons  holding  perfect  titles  to  lands  in 
California  were  protected  by  the  treaty  in  their  ownership  and 
enjoyment  to  the  same  extent  as  if  no  change  in  sovereignty  had 
occurred.  On  this  ground  it  was  held  in  the  early  cases  that  a 
failure  to  present  their  claims  for  confirmation  did  not  cause  a 
forfeiture  of  their  lands  to  the  governments.60  The  provisions  of 
the  treaty  under  which  California  was  acquired,  it  was  held  in 
the  early  cases,  operated  as  a  confirmation  in  praesenti  of  all  per- 
fect titles  to  lands  dependent  upon  Spanish  or  Mexican  grants 
made  prior  to  the  ratification  of  the  treaty.61 

§  286.  Perfected  claims  before  land  commission. — The  supreme 
court  of  the  United  States  held  that  there  was  nothing  in  the 
language  of  the  act  creating  the  land  commission  to  imply  any 
exclusion  of  perfected  claims  from  the  jurisdiction  of  the  com- 
mission. The  language  of  the  statute  contained  no  hint  or  at- 
tempt at  any  distinction  as  to  the  claims  to  be  presented  between 
perfect  claims  and  those  wrhich  were  imperfect  in  their  character. 
The  court  held  that  there  was  no  reason  in  the  policy  upon  which 
the  statute  was  founded  and  the  purposes  it  was  intended  to  sub- 
serve why  a  distinction  should  be  made  between  the  two  classes 
of  claims.  The  statute  was  not  intended  to  adjust  titles  between 
private  persons  asserting  claim  to  the  same  lands,  but  its  main 
purpose  was  to  separate  and  distinguish  the  lands  owned  by  the 
United  States  as  property,  which  the  government  could  sell  to 
others  either  absolutely  or  by  extending  to  them  pre-emption 

59  Kico   v.    Spence,   21   Cal.   504.  De  Toro  v.  Bobinson,  91  Cal.  371,  27 

60  Minturn  v.  Brower,  24  Cal.  644.       Pac.  671 ;  Anzar  v.  Miller,  90  Cal.  342, 
But  see  the  later  cases  of  Tuffree  v.       27  Pac.  299. 

Polhemus,  108  Cal.  670,  41  Pac.  808;  €1  Minturn  v.  Brower,  24  Cal.   644. 


§§    287,    288]  TREATIES   OF    CESSION.  326 

rights,  or  which  might  be  entirely  reserved  from  public  sale,  from 
those  lands  which  belonged  to  private  persons  either  in  a  legal 
or  equitable  sense,  under  a  claim  of  right  derived  from  the  gov- 
ernments of  Spain  or  Mexico.  The  later  California  decisions  ac- 
cepted this  rule.62  As  long,  however,  as  a  grant  of  land  in  Cali- 
fornia made  by  Mexico  was  inchoate  or  imperfect,  the  Mexican 
government  had  the  power  to  determine  the  validity  of  the  grant 
and  give  it  precise  location  as  long  as  the  territory  remained 
under  the  dominion  of  that  government.  This  power  passed  to 
the  United  States  upon  the  cession  of  California,  and  when  the 
power  is  exercised  by  the  United  States  the  grantee  is  bound  by 
its  decision.63 

§  287.  Measuring  of  land. — If,  while  the  ceded  territory  was 
under  the  dominion  of  Mexico,  a  grant  of  land  required  as  one 
of  its  conditions  that  the  land  should  be  measured  by  the  proper 
officer,  and  judicial  possession  should  then  be  given  to  the  gran- 
tee, the  legal  title  remained  in  the  Mexican  government  until  such 
measurement  and  delivery  of  possession.  By  a  grant  with  such 
a  condition,  the  grantee  acquired  only  an  imperfect  and  inchoate 
title.64 

§  288.  Titles  complete  at  time  of  cession. — Titles  which  have 
become  vested  are  not  affected  by  the  cession.  Only  the  sov- 
ereign is  displaced,  but  private  property  is  not  confiscated  and 
private  rights  are  not  destroyed.  The  relations  of  the  people  to 
each  other  are  not  altered,  although  their  allegiance  may  be. 
When  territory  is  ceded  by  treaty,  it  is  not  understood  that  prop- 
erty belonging  to  its  inhabitants  is  affected,  because  lands  previ- 
ously granted  are  not  within  the  power  of  one  sovereignty  to 

62  Botiller  v.  Dominguez,  130  U.  S.  Eobinson,  91  Cal.   376,  27  Pac.   673; 

247,  9  Sup.  Ct.  Eep.  525,  32  L.   ed.  De  la  Guerra  v.  Santa  Barbara,   117 

926,   reversing   74   Cal.   457,   16   Pac.  Cal.  533,  49  Pac.  735;  Harvey  v.  Bar- 

241;    Astiazaran   v.   Santa  Eita  Min,  ker,  126  Cal.  272,  58  Pac.  696;  Ainsa 

Co.,  148  U,  S.  82,  13  Sup.  Ct.  Eep.  457,  v.  New  Mexico  etc.  E.  E.  Co.,  175  U. 

37  L.  ed.  376;  Stoneroad  v.  Stoneroad,  S.  84,  20  Sup.  Ct.  Eep.  33,  44  L.  ed. 

158  U.  S.  248,  15  Sup.  Ct.  Eep.  825,  78 ;  Tuffree  v.  Polhemus,  108  Cal.  675, 

39  L.  ed.  969;  Houston  v.  San  Fran-  41  Pac.  806. 

cisco,  47  Fed.  339 ;   Anzar  v.  Miller,  *  De  Arguello  v.  Greer,  26  Cal.  615. 

90  Cal.  343,  27  Pac.  299;  De  Toro  v.  w  De  Arguello  v.  Greer,  26  Cal.  615. 


327 


TITLES    COMPLETE    AT    TIME    OF    CESSION. 


[§  288 


transfer  to  another.65  Still,  such  titles  may  require  confirmation 
by  the  political  power  or  some  agency  appointed  or  created  by 
it.66 


65  United  States  v.  Percheman,  7 
Pet.  (U.  S.)  52,  8  L.  ed.  604;  United 
States  v.  Arredondo,  6  Pet.  (U.  S.) 
692,  8  L.  ed.  547;  United  States  v. 
Waterman,  14  Pet.  (U.  S.)  478,  10 
L.  ed.  550;  United  States  v.  Wiggins, 
14  Pet.  (U.  S.)  334,  10  L.  ed.  481; 
United  States  v.  King,  3  How.  (U. 
S.)  773,  11  L.  ed.  824,  7  How.  (U.  S.) 
883,  11  L.  ed.  829;  United  States  v. 
Eeynes,  9  How.  (U.  S.)  127,  13  L. 
ed.  74;  Barry  v.  Gamble,  3  How.  (U. 
S.)  32,  11  L.  ed.  479;  Doe  v.  Eslava, 
9  How.  (U.  S.)  421,  13  L.  ed.  200; 
Doe  v.  Mobile,  9  How.  (U.  S.)  451, 
13  L.  ed.  212;  United  States  v. 
Power,  11  How.  (U.  S.)  570,  13  L. 
ed.  817;  United  States  v.  Philadelphia, 
11  How.  (U.  S.)  609,  13  L.  ed.  834; 
United  States  v.  Eoselius,  15  How. 
(U.  S.)  36,  14  L.  ed.  590;  United 
States  v.  Castant,  12  How.  (U.  S.) 
437,  13  L.  ed.  1056;  United  States  v. 
McCullagh,  13  How.  (U.  S.)  216,  14 
L.  ed.  118;  United  States  v.  Pillerin, 

13  How.    (U.    S.)    9,    14   L.    ed.    28; 
United     States    v.     D'Auterieve,     15 
How.   (U.  S.)   14,  14  L.  ed.  580,  101 
U.    S.    700,    25    L.    ed.    869;    United 
States  v.  Ducros,  15  How.  (U.  S.)  38, 

14  Li.  ed.  591;  Ainsa  v.  New  Mexico 
etc.  E.  Co.,  175  U.  S.  76,  20  Sup.  Ct. 
Eep.    28,   44   L.    ed.    78;    Maguire   v. 
Taylor,   8   Wall.    (U.   S.)    650,   19   L. 
ed.  320;  Smyth  v.  New  Orleans  Canal 
Co.,   93   Fed.    899,   35   C.   C.   A.   646; 
Trenier   v.    Stewart,    101    U.    S.    797, 
25   L.   ed.    1021;    Muse   v.    Arlington 
Hotel   Co.,    68    Fed.    637;    Mitchel   v. 
United   States,   9   Pet.   734,   9  L.   ed. 
291 ;  Strother  v.  Lucas,  12  Pet.  436,  9 
L.  ed.  1147;  United  States  v.  Clarke, 
16  Pet.  232,  10  L.  ed.  947;   Baldwin 
v.  Goldfrank,  88  Tex.  249,  31  S.  W. 


1064;  State  v.  Sais,  47  Tex.  307; 
Swift  v.  Herrera,  9  Tex.  263;  Han- 
cock v.  McKinney,  7  Tex.  384;  Ed- 
wards v.  James,  7  Tex.  372;  Smith 
v.  State,  5  Tex.  397;  Hardy  v.  De 
Leon,  5  Tex.  211;  McMullen  v.  Hodge, 
5  Tex.  34;  Jones  v.  Menard,  1  Tex. 
771;  White  v.  Wells,  5  Mart.  (O.  S.) 
652;  Sanchez  v.  Gonzales,  11  Mart. 
(O.  S.)  207;  Murdock  v.  Gurley,  5 
Eob.  (La.)  457;  Lavergne  v.  Elkins, 
17  La.  220;  Kittridge  v.  Hebert,  9 
La.  Ann.  154;  Nixon  v.  Houillon,  20 
La.  Ann.  515;  McGee  v.  Doe,  9  Fla. 
382;  Doe  v.  Eoe,  13  Fla.  602;  Keech 
v.  Enriquez,  28  Fla.  597,  10  South.  91 ; 
Wilson  v.  Smith,  5  Yerg.  (Tenn.) 
379. 

68  Thompson  v.  Los  Angeles  Farm- 
ing Co.,  180  U.  S.  72,  21  Sup.  Ct.  Eep. 
289,  45  L.  ed.  432;  Baker  v.  Harvey, 
181  U.  S.  481,  21  Sup.  Ct.  Eep.  690, 
45  L.  ed.  963;  Ainsa  v.  New  Mexico 
etc.  E.  Co.,  175  U.  S.  76,  20  Sup.  Ct. 
Eep.  28,  44  L.  ed.  78;  Botiller  v. 
Dominguez,  130  U.  S.  238,  9  Sup.  Ct. 
Eep.  525,  32  L.  ed.  926;  More  v. 
Steinbach,  127  U.  S.  70,  8  Sup.  Ct. 
Eep.  1067,  32  L.  ed.  51;  Fremont  v. 
United  States,  17  How.  (U.  S.)  553, 
15  L.  ed.  241;  United  States  v.  Fos- 
satt,  21  How.  (U.  S.)  445,  16  L.  ed. 
186;  Tuffree  v.  Polhemus,  108  Cal. 
670,  41  Pac.  806;  De  Toro  v.  Eobin- 
son,  91  Cal.  371,  27  Pac.  671;  Anzar 
v.  Miller,  90  Cal.  342,  27  Pac.  299; 
Houston  v.  San  Francisco,  47  Fed. 
337.  But  see  Thompson  v.  Doaksum, 
68  Cal.  597,  10  Pac.  199 ;  Minturn  v. 
Brower,  24  Cal.  644;  Leese  v.  Clark, 
20  Cal.  387;  Gregory  v.  McPherson, 
13  Cal.  562;  Gunn  v.  Bates,  6  Cal. 
263;  Eeynolds  v.  West,  1  Cal.  322. 


§§    289,    290]  TREATIES   OF    CESSION.  328 

§  289.  Act  of  Congress  in  conflict  with  treaty  of  cession. — It 
is  the  duty  of  the  courts  to  follow  the  statutory  enactments  of 
its  own  government  when  they  conflict  with  a  treaty  of  cession. 
If  the  government  of  the  United  States  chooses  to  disregard  the 
provisions  of  a  treaty  with  a  foreign  nation,  the  courts  have  no 
power  of  constituting  themselves  instrumentalities  for  enforcing 
such  provisions.67 

§  290.  Mexican  titles  in  California  after  treaty.— On  March  3, 
1851,  Congress  passed  an  act  entitled  "An  act  to  ascertain  and 
settle  the  private  land  claims  in  the  state  of  California,"  which 
provided  for  the  appointment  of  three  commissioners.  The  act 
provided  that  every  person  claiming  lands  in  California,  by  virtue 
of  any  right  or  title  derived  from  the  Spanish  or  Mexican  govern- 
ment, should  present  the  same  to  the  commissioners  with  such 
evidence,  documentary  and  oral,  as  he  relied  upon.  The  commis- 
sioners were  to  decide  upon  the  validity  of  the  claim  and  report 
the  same  with  the  reasons  for  the  decision  to  the  district  attorney 
of  the  United  States  for  the  district  for  which  the  decision  was 
rendered.  In  all  cases  of  confirmation  or  rejection  of  any  claim, 
either  the  claimant  or  the  United  States  attorney,  in  behalf  of 
the  United  States,  might  present  a  petition  to  the  federal  district 
court,  praying  it  to  review  the  decision  of  the  commission,  and 
to  decide  on  the  validity  of  the  claim.  The  court,  the  act  pro- 
vided, should  proceed  to  render  judgment  upon  the  pleadings 
and  evidence,  and  was  authorized  to  grant  an  appeal  to  the 

Possessory  rights  may  be  protected  247,  9  Sup.  Ct.  Eep.  525,  32  L.  ed. 
prior  to  confirmation.  Eeynolds  v.  926,  reversing  74  Cal.  457,  16  Pac. 
West,  1  Cal.  322;  Sunol  v.  Hepburn,  241;  Astiazaran  v.  Santa  Eita  Min. 
1  Cal.  255 ;  Gunn  v.  Bates,  6  Cal.  263 ;  Co.,  148  U.  S.  82,  13  Sup.  Ct.  Eep. 
Soto  v.  Kroder,  19  Cal.  87;  Wilson  v.  457,  37  L.  ed.  376;  Stoneroad  v.  Stone- 
Smith,  5  Yerg.  (Tenn.)  379;  Pino  v.  road,  158  U.  S.  248,  15  Sup.  Ct.  Eep. 
Hatch,  1  N.  Mex.  125;  Chaves  v.  Whit-  825,  39  L.  ed.  969;  Eio  Arriba  Land 
ney,  4  N.  Mex.  178,  16  Pac.  608;  Le  etc.  Co.  v.  United  States,  167  U.  S. 
Eoy  v.  Wright,  4  Saw.  (U.  S.)  530,  309,  17  Sup.  Ct.  Eep.  880,  42  L.  ed. 
15  Fed.  Gas.  No.  8273;  Tobin  v.  Walk-  179.  See,  also,  Chavez  v.  Chavez  De 
inshaw,  McAll.  (U.  S.)  151,  23  Fed.  Sanchez,  7  N.  Mex.  82,  32  Pac.  144; 
Cas.  No.  14,069;  United  States  v.  Lockhart  v.  Willis,  9  N.  Mex.  348,  54 
Parrott,  McAll.  (U.  S.)  271,  27  Fed.  Pac.  337;  Apis  v.  United  States,  88 
Cas.  No.  15,998.  Fed.  936;  Grant  v.  Jaramillo,  6  N. 

67  Botiller  v.  Dominguez,  130  U.  S.  Mex.    322,    28    Pac.    511. 


329  EFFECT    OF    THESE    ACTS.  [§    291 

supreme  court  of  the  United  States.  The  commissioners  and  the 
courts  "in  deciding  on  the  validity  of  any  claim  brought  before 
them  under  the  provisions  of  this  act  shall  be  governed  by  the 
treaty  of  Guadalupe  Hidalgo,  the  law  of  nations,  usages,  and 
customs  of  the  government  from  which  the  claim  is  derived,  the 
principles  of  equity,  and  the  decisions  of  the  supreme  court  of  the 
United  States,  so  far  as  they  are  applicable." 

It  was  further  provided  that  all  lands  the  claims  to  which 
should  be  finally  rejected  by  the  commissioners,  or  should  be 
finally  decided  to  be  invalid  by  the  courts,  and  all  lands  the 
claims  to  which  should  not  be  presented  to  the  commissioners 
within  two  years  after  the  date  of  the  act,  should  be  considered 
a  part  of  the  public  domain  of  the  United  States.68  In  1860  the 
act  was  amended  by  providing  that  whenever  the  surveyor-general 
should  have  caused  any  private  land  claim  to  be  surveyed,  he 
should  give  notice  of  the  same  by  publication,  and  after  the 
lapse  of  a  certain  time,  the  district  courts  were  authorized,  upon 
the  application  of  any  person  interested,  to  make  an  order  requir- 
ing the  survey  to  be  returned  into  court  for  examination  and  ad- 
judication. On  the  return  of  the  survey  to  the  court,  the  parties 
were  authorized  to  proceed  to  take  testimony  as  to  any  matters 
necessary  to  show  the  true  and  proper  location  of  the  claim,  and 
if,  in  the  opinion  of  the  court,  the  location  and  survey  are  erro- 
neous, the  court  was  authorized  to  set  it  aside  or  to  correct  and 
modify  it.69 

§  291.  Effect  of  these  acts. — It  would  be  beyond  the  scope  of 
this  work  to  notice,  except  in  the  briefest  possible  manner,  the 
various  phases  of  this  legislation,  or  to  enter  at  length  into  the 
various  cases  decided  by  the  courts.  It  may  be  said,  however, 
that  by  these  acts  the  land  that  was  subject  to  claims  derived 
from  Mexico  or  Spain  was  reserved  from  the  public  domain  until 
all  the  parties  interested  had  a  full  opportunity  to  present  their 
claims  for  adjudication.70  Parties  interested  in  a  claim  are  au- 

68  9  Stats,  at  Large,  931.  Carr,  125  U.  S.  618,  8  Sup.  Ct.  Eep. 

69  Stats.   1860;    12  Stats,  at  Large,  1228,    31    L.    ed.    844;    Middleton    v. 
33.  Low,  30  Cal.  596;  Foss  v.  Hinkell,  78 

70  Newhall  v.  Sawyer,  92  U.  S.  761,  Cal.  158,  20  Pac.  393.     See  for  vari- 
23  L.  ed.  769;  Hosmer  v.  Wallace,  97  ous  cases  under  these  statutes,  Beard 
U.  S.  575,  24  L.  ed.  1130;  Doolan  v.  v.  Federy,  3  Wall.  (U.  S.)  490,  18  L. 


§    292]  TREATIES  OF  CESSION.  330 

thorized  to  employ  the  name  of  the  original  claimant  in  proceed- 
ings to  establish  the  grant.71 

Nothing  more  was  contemplated  by  the  act  to  settle  Mexican 
claims  in  California  than  to  separate  lands  owned  by  individuals 
from  the  public  domain,  and,  therefore,  jurisdiction  exists  in 
courts  of  equity  to  relieve  against  fraud  or  mistake,  which  juris- 
diction may  be  exercised  where  a  patent  has  been  procured  by 
one  which  belonged  to  another  at  the  time  of  the  issue  of  the 
patent.  Where  the  relief  sought  is  based  upon  a  charge  of 
secret  fraud,  and  within  a  reasonable  time  after  the  discovery 
of  the  fraud  suit  was  instituted,  the  defense  of  laches  and  the 
statute  of  limitations  cannot  prevail,  nor  can  persons  having 
notice  of  the  adverse  title  at  the  time  of  purchase  be  deemed  in- 
nocent purchasers.72 

§  292.  Decree  has  effect  of  judgment. — Generally,  the  de- 
cree has  the  effect  of  a  judgment.  If  no  appeal  is  taken  within 
the  period  fixed  by  statute,  or  if  the  decision  is  affirmed  on  ap- 
peal, the  decree  is  conclusive  and  binding,  both  upon  the  claimant 
and  the  United  States  and  their  privies.73  The  patent,  when 

ed.   88;    Peralta   v.   United   States,   3  Cal.  248;  Rush  v.  Casey,  39  Cal.  339; 

Wall.    (U.    S.)    434,    18    L.    ed.    221;  Taylor  v.  Escadon,  50  Cal.  428;  Hast- 

Townsend      v.    Greeley,    5    Wall.   (U.  ings  v.  McGoogin,  27  Cal.  85;  Durfee 

S.)     335,    18    L.    ed.    547;    More     v.  v.  Plaisted,  38  Cal.  80;  Wormouth  v. 

Steinbach,   127  U.   S.   70,   8   Sup.   Ct.  Gardner,   112  Cal.  506,  44  Pac.  806; 

Eep.  1067,  32  L.  ed.  51;  United  States  Watriss  v.  Eeed,  99  Cal.  134,  33  Pac. 

v.  Fossatt,  21  How.   (U.  S.)   445,  16  775;  Gresar  v.  McDowell,  6  Wall.  (U. 

L.    ed.    186;    Swat   v.   United    States,  S.)  363,  18  L.  ed.  863;  United  States 

Hoffm.   Land   Cas.    (U.    S.)     230,    23  v.  Ritchie,  17  How.    (U.  S.)    525,  15 

Fed.    Cas.    No.     13,680;     Boulden    v.  L.  ed.  236;  United  States  v.  Pacheco, 

Phelps,  12  Saw.   (U.  S.)  316,  30  Fed.  20  How.   (U.  S.)   261,  15  L.  ed.  820; 

547;  Frisbie  v.  Whitney,  9  Wall.   (U.  Yturbide  v.   United   States,   22   How. 

S.)    187,   19  L.  ed.   668;   Atherton  v.  (U.   S.)    290,   16  L.   ed.   342;   United 

Fowler,  96  U.  S.  513,  24  L.  ed.  732;  States  v.  Morillo,  1  Wall.  (U.  S.)  706, 

Beley  v.  Naphtaly,  169  U.  S.  353,  18  17  L.  ed.   626. 

Sup.   Ct.  Rep.   354,  42    L.    ed.    775;  n  United  States  v.  Sutter,  21  How. 

United   States  v.   Castillero,   2   Black  (U.  S.)  170,  16  L.  ed.  119. 

(U.  S.),  17,  17  L.  ed.  360;   Mora  v.  T2  Meader  v.  Norton,  11  Wall.    (U. 

Foster,  3  Saw.  469,  17  Fed.  Cas.  No.  S.)   442,  20  L.  ed.  184. 

9784;    Hosmer   v.  Wallace,   97  U.   S.  «  Malarin  v.  United  States,  1  Wall. 

575,  24  L.  ed.  1130;  Hays  v.  Steiger,  282,  17  L.  ed.  594;  United  States  v. 

156  U.  S.  387,  15  Sup.  Ct.  Rep.  412,  Fossatt,  21  How.   (U.  S.)   445,  16  L. 

30  L.  ed.  463 ;  Estrada  v.  Murphy,  19  ed.  186 ;  Boyle  v.  Hinds,  2  Saw.  527, 


331 


OTHER  STATUTES. 


[§    293 


issued,  is  to  be  considered  as  a  surrender  by  the  United  States 
of  all  interest  in  the  land  described  in  the  patent.74  The  con- 
firmation of  a  Mexican  grant  as  well  as  the  issue  of  a  patent  there- 
under is  operative  in  favor  of  the  confirmee  only  and  of  those 
who  claim  under  him.  It  establishes  the  legal  title,  but  if  in  the 
presentation  of  the  claim  the  confirmee  acted  in  a  fiduciary  capac- 
ity, or  with  the  intention  of  defrauding  the  real  owner,  the  trans- 
fer of  the  legal  title  to  the  person  equitably  entitled  to  hold  it  will, 
upon  a  proper  proceeding,  be  decreed  by  a  court  of  equity.75  A 
bill  in  chancery  to  set  aside,  on  the  ground  of  fraud,  a  judgment 
or  decree  between  the  same  parties  rendered  by  a  court  of  com- 
petent jurisdiction  will  be  sustained  only  for  frauds  extrinsic  or 
collateral  to  the  matter  tried  by  the  first  court.  A  fraud  which 
was  an  issue  in  the  first  suit  cannot  be  considered.76 


§  293.     Other  statutes. — In  1854  Congress  passed  an  act  relat- 
ing to  public  lands  in  New  Mexico,  which  in  section  8  provided 


3  Fed.  Gas.  No.  1759;  United  States 
v.  Payson,  1  Cal.  Law  J.  325,  27  Fed. 
Gas.  No.  16,016;  San  Francisco  v. 
United  States,  4  Saw.  553,  21  Fed. 
Gas.  No.  12,316;  Mott  v.  Smith,  16 
Cal.  550;  Bernal  v.  Lynch,  36  Cal. 
143;  Gregory  v.  McPherson,  13  Cal. 
574;  Kimball  v.  Semple,  25  Cal.  454; 
Soto  v.  Kroder,  19  Cal.  87;  Clark  v. 
Lockwood,  21  Cal.  220;  Mahoney  v. 
Van  Winkle,  21  Cal.  576. 

74  Beard  v.  Federy,  3  Wall.  478,  18 
L.  ed.  88;  United  States  v.  Conway, 
175  U.  S.  60,  20  Sup.  Ct.  Eep.  13,  44 
L.  ed.  72;  Manning  v.  San  Jacinto 
Tin  Co.,  7  Saw.  418,  9  Fed.  726;  Hay- 
ner  v.  Stanly,  8  Saw.  214,  13  Fed. 
217;  Tripp  v.  Spring,  5  Saw.  209,  24 
Fed.  Gas.  No.  14,180;  Steinback  v. 
Perkins,  58  Cal.  86;  Waterman  v. 
Smith,  13  Cal.  373;  Pioche  v.  Paul, 
22  Cal.  Ill;  Waterman  v.  Smith,  13 
Cal.  373;  Hart  v.  Burnett,  15  Cal. 
530 :  Miller  v.  Dale,  44  Cal.  578 ;  Cruz 
v.  Martinez,  53  Cal.  239;  Carey  v. 
Brown,  58  Cal.  180;  Turner  v.  Don- 


nelly, 70  Cal.  604,  12  Pac.  469;  Adair 
v.  White,  85  Cal.  313,  24  Pac.  663. 

75  De  Castrc  v.  Fellom,  135  Cal. 
225,  67  Pac.  142.  And  see  Los  An- 
geles v.  Pomeroy,  125  Cal.  420,  58 
Pac.  69;  Byrne  v.  Alas,  74  Cal.  639, 
16  Pac.  523;  Mound  City  Land  etc. 
Assn.  v.  Philip,  64  Cal.  497,  2  Pac. 
270;  McDonald  v.  McCoy,  121  Cal. 
55,  53  Pac.  421;  Sherman  v.  McCarthy, 
57  Cal.  507;  Hartley  v.  Brown,  51 
Cal.  465 ;  Schmitt  v.  Giovanari,  43  Cal. 
617;  O'Connell  v.  Dougherty,  32  Cal. 
462 ;  Salmon  v.  Symon'ds,  30  Cal.  301 ; 
Emeric  v.  Penniman,  26  Cal.  124;  Es- 
trada v.  Murphy,  19  Cal.  272;  Clark 
v.  Lockwood,  21  Cal.  220;  United 
States  v.  Covilland,  1  Black  (U.  S.), 
339,  17  L.  ed.  40;  Carpentier  v.  Mont- 
gomery, 13  Wall.  (U.  S.)  480,  20  L. 
ed.  698;  Santa  Clara  Min.  Assn.  v. 
Quicksilver  Min.  Co.,  8  Saw.  (U.  S.) 
330,  17  Fed.  657;  Miller  v.  Dale,  92 
U.  S.  473,  23  L.  ed.  735. 

16  United  States  v.  Throckmorton, 
98  U.  S.  61,  25  L.  ed.  93.  See,  also, 


§    293]  TREATIES  OF  CESSION.  332 

that:  "It  shall  be  the  duty  of  the  Surveyor-General,  under  such 
instructions  as  may  be  given  by  the  Secretary  of  the  Interior,  to 
ascertain  the  origin,  nature,  character,  and  extent  of  all  claims 
to  lands  under  the  laws,  usages,  and  customs  of  Spain  and  Mexico ; 
and,  for  this  purpose,  may  issue  notices,  summon  witnesses,  ad- 
minister oaths,  and  do  and  perform  all  other  necessary  acts  in 
the  premises.  He  shall  make  a  full  report  on  all  such  claims 
as  originated  before  the  cession  of  the  territory  to  the  United 
States  by  the  treaty  of  Guadalupe  Hidalgo,  of  eighteen  hundred 
and  forty-eight,  denoting  the  various  grades  of  title,  with  his 
decision  as  to  the  validity  or  invalidity  of  each  of  the  same  under 
the  laws,  usages,  and  customs  of  the  country  before  its  cession 
to  the  United  States;  and  shall  also  make  a  report  in  regard  to 
all  pueblos  existing  in  the  Territory,  showing  the  extent  and 
locality  of  each,  stating  the  number  of  inhabitants  in  the  said 
pueblos,  respectively,  and  the  nature  of  their  titles  to  the  land. 
Such  report  to  be  made  according  to  the  form  which  may  be  pre- 
scribed by  the  Secretary  of  the  Interior;  which  report  shall  be 
laid  before  Congress  for  such  action  thereon  as  may  be  deemed 
just  and  proper,  with  a  view  to  confirm  bona  fide  grants,  and 
give  full  effect  to  the  treaty  of  eighteen  hundred  and  forty-eight 
between  the  United  States  and  Mexico;  and,  until  final  action 
of  Congress  on  such  claims,  all  lands  covered  thereby  shall  be 
reserved  from  sale  or  other  disposal  by  the  Government,  and  shall 
not  be  subject  to  the  donations  granted  by  the  previous  provisions 
of  this  act."77 

In  1870  Congress  provided  that  it  should  be  the  duty  of  the 
surveyor-general  of  Arizona,  "under  such  instructions  as  may  be 
given  by  the  Secretary  of  the  Interior,  to  ascertain  and  report 
upon  the  origin,  nature,  character  and  extent  of  the  claims  to 
lands  on  said  territory  under  the  laws,  usages  and  customs  of 
Spain  and  Mexico ;  and  for  the  purpose  he  shall  have  all  the 
powers  conferred,  and  shall  perform  all  the  duties  enjoined  upon 
the  surveyor-general  of  New  Mexico  by  the  eighth  section"  of 
the  act  above  cited.78  In  1891  Congress  established  a  court  to  be 

San  Pedro  etc.  Co.  v.  United  States,  "  10   U.    S.   Stats,   at   Large,   309, 

146  U.  S.  120,  13  Sup.  Ct.  Kep.  94,       sec.  8. 

J56  L.  ed.  912;   United  States  v.  San  78  16  Stats,  at  Large,  304. 

Jacinto  Tin  Co.,  125  U.  S.  273,  8  Sup. 

Ct.  Kep.  850,  31  L.  ed.  747. 


333         CEDED  TERRITORY  AS  PART  OF  UNITED  STATES.     [§  294: 

called  the  court  of  private  land  claims,  to  have  jurisdiction  in 
the  hearing  and  decision  of  private  land  claims  ''within  the  limits 
of  the  territory  derived  by  the  United  States  from  the  Republic 
of  Mexico  and  now  embraced  within  the  territories  of  New  Mexico, 
Arizona  or  Utah,  or  within  the  states  of  Nevada,  Colorado  or 
Wyoming,  by  virtue  of  any  such  Spanish  or  Mexican  grant,  con- 
cession, warrant  or  survey  as  the  United  States  are  bound  to 
recognize  and  confirm  by  virtue  of  the  treaties  of  cession  of 
said  country  by  Mexico  to  the  United  States,  which  at  the  date 
of  the  passage  of  this  act  have  not  been  confirmed  by  act  of 
Congress,  or  otherwise  decided  upon  by  lawful  authority,  and 
which  are  not  already  complete  and  perfect. "  79  It  was  held  that 
this  court  had  no  jurisdiction  over  a  claim  for  the  remainder  of 
the  land  included  in  an  alleged  Mexican  grant,  which  has  been 
allowed  only  in  part  by  act  of  Congress.80  Nor  did  the  act  give 
the  court  jurisdiction  over  an  inchoate  claim  incapable  of  asser- 
tion as  an  absolute  right  against  the  government  of  either  Spain 
or  Mexico,  and  subject  to  the  uncontrolled  discretion  of  Con- 
gress.81 

§  294.  Preventing  incorporation  of  ceded  territory  into  United 
States. — The  treaty-making  power  may  insert  in  the  treaty  of  ces- 
sion conditions  which  will  preclude,  without  the  consent  of  Con- 
gress, the  incorporation  into  the  United  States  of  territory  ac- 
quired by  treaty.  If  the  treaty  is  not  repudiated  by  Congress, 

79  26   Stats,   at  Large,   854,   March  v.  United  States,   171  U.   S.   220,   18 
3,  1891.  Sup.    Ct.    Kep.    840,    43    L.    ed.    142; 

80  Las   Animas  Land  Grant  Co.   v.  United   States   v.    Camou,    171   U.    S. 
United  States,  179  U.  S.  201,  21  Sup.  277,  18  Sup.  Ct.  Eep.  855,  43  L.  ed. 
Ct.  Rep.  92,  45  L.  ed.  153.  163;  184  U.  S.  572,  22  Sup.  Ct.  Eep. 

81  United   States  v.   Santa  Fe,   165  505,  46  L.  ed.  694;  Perrin  v.  United 
U.  S.  675,  17  Sup.  Ct.  Rep.  472,  41  L.  States,  171  U.  S.  292,  18  Sup.  Ct.  Rep. 
ed.  874.     For  various  other  cases  in-  861,  43  L.  ed.   169;   Real  de  Dolores 
volving  this  act,  see    Ainsa  v.  United  Del  Oro  v.  United  States,  175  U.  S.  71, 
States,  161  U.  S.  208,  16  Sup.  Ct.  Rep.  20   Sup.   Ct.   Rep.   17,  44  L.   ed.   76; 
544,  40  L.  ed.  673;  United  States  v.  Ainsa  v.  New  Mexico  etc.  R.  Co.,  175 
Sandavol,  167  U.  S.  278,  17  Sup.  Ct.  U.  S.  76,  20  Sup.  Ct.  Rep.  28,  44  L.  ed. 
Rep.   868,   42   L.   ed.   168;    Cessna  v.  78;  United  States  v.  Chavez,  175  U.  S. 
United  States,  169  U.  S.  165,  18  Sup.  509,  20  Sup.  Ct.  Rep.  159,  44  L.  ed. 
Ct.  Rep.  314,  42  L.  ed.  702;   United  255;   United  States  v.  Martinez,   184 
States  v.   Conway,   175   U.   St   60,   20  U.  S.   441,   22   Sup.  Ct.  Rep.  422,  46 
Sup.  Ct.  Rep.  159,  44  L.  ed.  72;  Ely  L.  ed.  632;  Reloj  Cattle  Co.  v.  United 


§    295]  TREATIES  OF  CESSION.  334 

such  conditions  will  have  the  force  of  the  law  of  the  land.  The 
treaty  by  which  the  United  States  acquired  Porto  Rico  and  other 
territory  providing  that  the  civil  rights  and  political  status  of 
the  native  inhabitants  should  be  determined  by  Congress,  mani- 
fested an  express  purpose  to  leave  the  status  of  the  territory 
to  the  determination  of  Congress,  but  also  to  prevent  the  treaty 
from  having  a  contrary  effect.82 

Congress  has  power  by  legislation  to  give  effect  to  the  treaty 
by  which  the  United  States  agreed  to  assume  and  discharge  the 
obligations  that  might,  under  international  law,  result  from  its 
occupation  of  Cuba  or  the  protection  of  life  and  property  in  that 
island.83 

§  295.  Inhabitants  of  ceded  territory  as  citizens. — The  treaties 
by  which  Louisiana,  Florida,  California  and  Alaska  were  acquired 
made  the  native-born  inhabitants  of  those  territories  citizens  of 
the  United  States.  The  treaty  of  Paris,  by  which  Porto  Rico 
was  acquired,  contained  no  such  provision,  but,  on  the  contrary, 
declared:  "The  civil  rights  and  political  status  of  the  native  in- 
habitants of  the  territories  hereby  ceded  to  the  United  States 
shall  be  determined  by  the  Congress. ' '  Congress  passed,  in  April, 
1900,  an  act  in  conformity  with  this  clause  in  the  treaty  declar- 

States,  184  U.  S.  624,  22  Sup.  Ct.  Rep.  Central  Colorado  Imp.  Co.  v.  Pueblo 
499,  46  L.  ed.  721;  Ainsa  v.  United  County,  95  U.  S.  259,  24  L.  ed.  495; 
States,  184  U.  S.  639,  22  Sup.  Ct.  Eep.  Maxwell  Land  Grant  Case,  121  U.  S. 
507,  46  L.  ed.  727;  United  States  v.  325,  7  Sup.  Ct.  Rep.  1015,  30  L.  ed. 
Baca,  184  U.  S.  653,  22  Sup.  Ct.  Rep.  949;  122  U.  S.  365,  7  Sup.  Ct.  Rep. 
541,  46  L.  ed.  733;  United  States  v.  1271,  30  L.  ed.  1211;  Russell  v.  Max- 
Green,  185  U.  S.  256,  22  Sup.  Ct.  Rep.  well  Land  Grant  Co.,  158  U.  S.  253, 
640,  46  L.  ed.  898 ;  Lockhart  v.  Wills,  15  Sup.  Ct.  Rep.  827,  39  L.  ed.  971 ; 
9  N.  Mex.  263,  50  Pac.  318.  Maese  v.  Herman,  183  U.  S.  572,  22 
For  decisions  under  other  acts  relat-  Sup.  Ct.  Rep.  91,  46  L.  ed.  335 ; 
ing  to  land  claims  in  Arizona  and  United  States  v.  Cleveland  etc.  Cattle 
New  Mexico,  see  Pinkerton  v.  Ledoux,  Co.,  33  Fed.  323 ;  Chaves  v.  Whitney, 
129  U.  S.  346,  9  Sup.  Ct.  Rep.  399,  4  N.  Mex.  178,  16  Pac.  608;  Colorado 
32  L.  ed.  706;  Tameling  v.  United  Fuel  Co.  v.  Maxwell  Land  Grant  Co., 
States  Freehold  etc.  Co.,  93  U.  S.  644,  22  Colo.  71,  43  Pac.  556. 
23  L.  ed.  998;  Interstate  Land  Co.  *  Downes  v.  Bidwell,  182  U.  S.  244, 
v.  Maxwell  Land  Grant  Co.,  139  U.  Rl  Sup.  Ct.  Rep.  770,  45  L.  ed.  1088. 
S.  569,  11  Sup.  Ct.  Rep.  656,  35  L.  ed.  «  Neely  v.  Henkel,  180  U.  S.  109, 
278;  Shaw  v.  Kellogg,  170  U.  S.  312,  21  Sup.  Ct.  Rep.  302,  45  L.  ed.  448. 
18  Sup.  Ct.  Rep.  632,  42  L.  ed.  1050; 


335  FOREIGN    CORPORATIONS    NOT    SUBJECTS.       [§§    296,   297 

ing :  * '  That  all  inhabitants  continuing  to  reside  therein  who  were 
Spanish  subjects  on  the  eleventh  day  of  April,  1899,  and  then 
resided  in  Porto  Rico,  and  their  children  born  subsequent  thereto, 
shall  be  deemed  and  held  to  be  citizens  of  Porto  Rico,  and  as 
such  entitled  to  the  protection  of  the  United  States  (excepting 
such  as  had  preserved  their  allegiance  to  Spain),  and  they,  to- 
gether with  such  citizens  of  the  United  States  as  may  reside  in 
Porto  Rico,  shall  continue  a  body  politic  under  the  name  of  'The 
People  of  Porto  Rico,'  with  governmental  powers  as  hereinafter 
conferred,  and  with  power  to  sue  and  be  sued  as  such."  An 
unmarried  woman  who  arrived  in  the  United  States  in  1902,  a 
native  of  Porto  Rico,  was  detained  at  the  emigrant  station,  exam- 
ined by  a  board  of  inquiry,  and  excluded  from  admission  into 
the  United  States,  upon  the  ground  that  she  was  liable  to  become 
a  public  charge.  She  presented  a  petition  for  a  writ  of  habeas 
corpus,  and  the  sole  question  before  the  court  was,  Was  she  a 
citizen  or  an  alien  ?  The  court  held  that  the  act  of  Congress  did 
not  operate  to  naturalize  her  as  a  citizen  of  the  United  States, 
and  that  she  remained  an  alien.84 

§  296.  Foreign  corporations  not  subjects. — The  rule  has  been 
recognized  that  corporations  are  not  subjects  within  the  mean-- 
ing of  treaties.  A  corporation  organized  in  Great  Britain,  hav- 
ing its  principal  place  of  business  in  that  country,  is  not  a  sub- 
ject of  that  country  within  the  meaning  of  a  treaty  which  gives 
to  the  subjects  of  that  country  the  right  to  do  business  in  any 
of  the  states  of  the  Union  on  the  same  terms  as  native  citizens.85 

§  297.  Effect  of  treaty  on  dam  in  Rio  Grande. — It  was  claimed 
in  a  suit  brought  by  the  United  States  to  restrain  an  irrigation 
company  from  constructing  a  dam  across  the  Rio  Grande  river 
in  the  territory  of  New  Mexico,  and  appropriating  the  waters  of 
that  stream  for  the  purposes  of  irrigation  that  the  provision  of 
the  treaty  of  Guadalupe  Hidalgo  of  1848,  securing  the  free  and 
unobstructed  navigation  of  that  river,  was  violated.  It  was  held 
in  the  lower  court  that  there  was  no  violation  of  the  treaty,  and 
in  the  supreme  court  of  the  United  States  it  was  held  that  the 
treaty  was  not  involved.  In  the  lower  court  it  was  decided  that 

84  In  re  Gonzalez,  118  Fed.  941.  »  Scottish   Union    etc.    Ins.    Co.    v. 

,Herriott,  109  Iowa,  606,  80  N.  W.  665. 


'§  297] 


TREATIES  OF  CESSION. 


336 


the  dam  was  not  an  obstruction  to  navigation,  but  this  ruling  was 
reversed  by  the  supreme  court  of  the  United  States  holding  that 
the  jurisdiction  of  the  general  government  over  interstate  com- 
merce and  its  natural  highways  places  in  that  government  the 
right  to  take  all  necessary  measures  to  preserve  the  navigability 
of  the  navigable  watercourses  of  the  country,  and  that  the  pro- 
hibition against  obstructing  the  navigable  capacity  of  any  waters 
included  an  obstruction  not  only  in  that  part  of  the  stream  that 
was  navigable,  but  also  anything  destroying  the  navigable  capac- 
ity of  a  navigable  stream  wherever  or  however  done.86  The  pres- 
ervation of  the  navigable  waters  of  the  United  States  for  the 


86  United  States  v.  Rio  Grande  Dam 
&  I.  Co?,  174  U.  S.  690,  19  Sup.  Ct. 
Eep.  770,  43  L.  ed.  1136.  The  case  in 
the  lower  court  is  reported  in  9  N.  Mex. 
292,  51  Pac.  674.  So  far  as  the  ques- 
tion of  treaty  was  involved,  Mr.  Jus- 
tice Brewer  said:  " Neither  is  it 
necessary  to  consider  the  treaty  stipu- 
lations between  this  country  and  Mex- 
ico. It  is  true  that  the  Eio  Grande, 
for  several  hundred  miles  above  its 
mouth,  forms  the  boundary  between 
this  country  and  Mexico,  and  that  the 
seventh  article  of  the  treaty  between 
the  United  States  and  Mexico  of 
February  2,  1848  (9  Stats,  at  Large 
928),  stipulates  that  'the  Eiver  Gila 
and  the  part  of  the  Eio  Bravo  del 
Norte  lying  below  the  southern 
boundary  of  New  Mexico  being  agree- 
ably to  the  fifth  article,  divided  in  the 
middle  between  the  two  Eepublics,  the 
navigation  of  the  Gila  and  of  the 
Bravo  below  said  boundary  shall  be 
free  and  common  to  the  vessels  and 
citizens  of  both  countries,  and  neither 
shall,  without  the  consent  of  the 
other,  construct  any  work  that  may 
impede  or  interrupt,  in  whole  or  in 
part,  the  exercise  of  this  right,  not 
even  for  the  purpose  of  favoring  new 

methods      of      navigation The 

stipulations  contained  in  the   present 
article  shall  not  impair  the  territorial 


rights  of  either  Eepublic  within  its 
established  limits.'  But  by  the 
fourth  article  of  the  Gadsden  treaty 
of  December  30,  1853  (10  Stats,  at 
Large,  1034),  it  was  provided  that 
'the  several  provisions,  stipulations, 
and  restrictions  contained  in  the  sev- 
enth article  of  the  treaty  of  Guada- 
lupe  Hidalgo  shall  remain  in  force 
only  so  far  as  regards  the  Eio  Bravo 
del  Norte,  below  the  initial  of  the 
said  boundary  provided  in  the  first 
article  of  this  treaty,  that  is  to  say, 
below  the  intersection  of  the  31  de- 
gree, 47'  30"  parallel  of  latitude, 
with  the  boundary  line  established  by 
the  late  treaty  dividing  said  river 
from  its  mouth  upwards,  according 
to  the  fifth  article  of  the  treaty  of 
Guadalupe. '  And  on  December  26, 
1890,  a  convention  was  concluded  be- 
tween the  United  States  and  Mexico 
(26  Stats,  at  Large,  1512),  which  pro- 
vided for  an  international  boundary 
commission,  to  which  was  given,  by 
article  five,  the  power  to  inquire,  upon 
complaint  of  the  local  authorities, 
whether  works  were  being  constructed 
in  the  Eio  Grande  prohibited  by  any 
prior  treaty  stipulations.  There  is  no 
suggestion  in  the  bill  that  any  action 
by  these  commissioners  was  invoked, 
although  it  appears  from  one  of  the 
affidavits  that  the  commission  has  been 


EFFECT   OF   TREATY   ON   DAM   IN   RIO   GRANDE. 


[§  297 


benefit  of  its  own  citizens  is  a  matter  of  as  much  concern  as  any 
obligation  created  by  treaty  or  arising  from  the  principles  of  in- 
ternational law,  in  favor  of  other  nations  or  their  citizens. 


duly  constituted.  Now  it  is  debated 
by  counsel  whether  the  construction 
of  a  dam  at  the  place  named  in  New 
Mexico,  a  place  wholly  within  the  ter- 
ritorial jurisdiction  of  the  United 
States,  is  a  violation  of  any  of  the 
treaty  stipulations  above  referred  to — 
they  being,  primarily  at  least,  lim- 
ited to  that  portion  of  the  river 
which  forms  the  boundary  line  be- 
tween the  two  nations;  and  also 
whether  the  fact  that  the  Eio  Grande 
is  partially  within  the  limits  of  Mex- 
ico would  give  that  nation,  under  the 
rules  of  international  law,  any  right 
to  complain  of  the  total  appropriation 
of  its  waters  for  the  legitimate  uses 
of  the  people  of  the  United  States. 
Such  qiiestions  might  under  some  cir- 
cumstances be  interesting  and  impor- 
tant; but  here  the  Eio  Grande,  so 
far  as  it  is  a  navigable  stream,  lies 
Treaties — 22 


as  much  within  the  territory  of  the 
United  States  as  in  that  of  Mexico, 
it  being,  where  navigable,  the  bound- 
ary between  the  two  nations,  and 
the  middle  of  the  channel  being  the 
dividing  line.  Now,  the  obligation  of 
the  United  States  to  preserve  for  their 
own  citizens  the  navigability  of  its 
navigable  waters  is  certainly  as  great 
as  any  arising  by  treaty  or  interna- 
tional law  to  other  nations  or  their 
citizens,  and  if  the  proposed  dam  and 
appropriation  of  the  waters  of  the 
Eio  Grande  constitute  a  breach  of 
treaty  obligations  or  of  international 
duty  to  Mexico,  they  also  constitute 
an  equal  injury  and  wrong  to  the 
people  of  the  United  States." 
United  States  v.  Eio  Grande  Dam  & 
I.  Co.,  174  U.  S.  690,  19  Sup.  Ct. 
Bep.  770,  43  L.  ed.  1140. 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  338 


CHAPTER  XI. 

TKEATIES    OF   EXTRADITION   AND   PEOCEEDINGS    THEREUNDER. 

§  298.  Extradition  dependent  upon  treaty. 

§  299.  Extradition  included  within  treaty-making  power. 

§  300.  Delivery  to  the  United  States  as  a  matter  of  comity. 

§  301.  No    power    to    reciprocate. 

§  302.  Escape   effected  by  means   of  foreign   vessel. 

§  303.  Asking  extradition  as  a  favor. 

§  304.  Delivery  independent  of  treaty. 

§  305.  Surrender  not  in   pursuance   of  treaty. 

§  306.  Delivery  under  immigration   acts. 

§  307.  Territory   occupied   by   United   States. 

§  308.  Treaty  measure  of  right. 

§  309.  Crime    committed   within   jurisdiction. 

§  310.  Crime   not   complete  in   one   country. 

§  311.  Irregularities    in    extradition. 

§  312.  Indictment  and  trial  valid. 

§  313.  Action  by  the  government. 

§  314.  Criminal  by  the  law  of  both  countries. 

§  315.  Bonds   and   coupons. 

§  316.  Common-law  crimes. 

§  317.  Embezzling  public  moneys. 

§  318.  Law  of  the  place. 

§  319.  Laws  of  the  place  of  refuge. 

§  320.  Forgery  in  the  third  degree. 

§  321.  Retroactive   effect  of   treaties. 

§  322.  Special  stipulation  as  to  time  of  taking  effect. 

§  323.  Extradition    of    citizens. 

§  324.  Treaty  provisions. 

§  325.  Position   of   the   United   States. 

§  326.  Under  the  Mexican  law. 

§  327.  Citizens  of  another  country. 

§  328.  Political  offenses. 

§  329.  Final  decision  as  to  question. 

§  330.  Some  instances. 

§  331.  Raid  at  San  Ignacio. 

§  332.  Pilcomayo  mutineers. 

§  333.  Exemption  from  local  jurisdiction. 

§  334.  Attempt  against  life   of  President  or  other  officers. 

§  335.  Case  of  anarchists. 

§  336.  Trial  for  different  offense. 

§  337.  Pleading  other  offense. 


339  EXTRADITION  DEPENDENT   UPON   TREATY.  [§    298 

§  338.  Variances. 

§  339.  Lesser  offense. 

§  340.  Arrest  on  prior  charge. 

§  341.  Offense  committed  pending  trial. 

§  342.  Application  for  requisition. 

§  343.  Mandate. 

§  344.  Who  may  act  as  magistrate. 

§  345.  Sufficiency  of  the  complaint. 

§  346.  Precision  of  indictment  not  required. 

§  347.  Ordinary   technicalities   not   applicable. 

§  348.  Arrest  of  fugitive. 

§  349.  Provisional  arrest. 

§  350.  Evidence  required. 

§  351.  Foreign  depositions. 

§  352.  Evidence  on  behalf  of  fugitive. 

§  353.  Habeas    corpus    proceedings. 

§  354.  Appeal  and  not  writ  of  error. 

§  355.  Consul  may  appeal. 

§  356.  Conflicting  evidence. 

§  357.  Surrender  of  fugitive   an   executive   function. 

§  358.  Surrender  upon   different  charge. 

§  359.  Eefusal  to  surrender. 

§  360.  Eelease  of  debtor  in  jail  under  civil  process. 

§  361.  Delivery  within  two  months  after  commitment. 

§  362.  Transit  across  the  United  States. 

§  363.  Eestoration  of  property. 

§  364.  Expenses  of   extradition. 

§  365.  Expenses  of  district  attorney. 

§  366.  Method  for  payment  of  expenses. 

§  367.  Deserting   seamen. 

§  368.  Gradual  extension  of  list  of  crimes  included  in  treaties. 

§  369.  Eegulations  of  State  Department. 

§  298.  Extradition  dependent  upon  treaty. — In  the  absence  of 
a  treaty,  one  country  is  under  no  obligation  to  deliver  up  fugitives 
from  justice  to  another,  although  as  a  matter  of  comity  between 
nations  such  deliveries  have  often  been  made.  "The  laws  of 
nations  embrace  no  provision  for  the  surrender  of  persons  who 
are  fugitives  from  the  offended  laws  of  one  country  to  the 
territory  of  another.  It  is  only  by  treaty  that  such  surrender 
can  take  place. ' ' 1 

In  1834  the  British  Minister  requested  the  extradition  of  a 
person  charged  with  murder  in  England,  but  the  reply  was  made 

1  Mr.  Eush,   Secretary  of  State,  to    Mr.  Hyde  de  Neuville,  April  9,  1817, 
MS.  Notes  to  For.  Leg.,   II,  218. 


§  298] 


TREATIES  OF  EXTRADITION  AND  PROCEEDINGS. 


340 


that  where  no  treaty  existed  on  the  subject,  the  authority  of 
the  Executive  to  exercise  an  act  having  such  an  important  effect 
upon  the  rights  of  personal  security  was  more  than  questionable, 
and  that  the  case  was  "without  any  remedy  in  the  competency  of 
this  government  to  apply."2  Mr.  Webster,  while  Secretary  of 
State,  stated:  "Although  such  extradition  is  sometimes  made, 
yet,  in  the  absence  of  treaty  stipulations,  it  is  always  a  matter  of 
comity  or  courtesy.  No  government  is  understood  to  be  bound 
by  the  positive  law  of  nations  to  deliver  up  criminals,  fugitives 
from  justice,  who  have  sought  an  asylum  within  its  limits,"3 
It  is  well  settled,  whatever  may  be  said  by  writers  on  inter- 
national law,  that  there  is  no  obligation  upon  the  United  States 
to  deliver  fugitives  from  justice  except  as  authorized  by  and 
in  compliance  with  treaty  provisions.4  "In  the  United  States, 
the  general  opinion  and  practice  have  been  that  extradition 
should  be  declined  in  the  absence  of  a  conventional  or  legislative 


provision. 

2  Mr.  Forsyth,   Secretary  of  State, 
to   Mr.   Vaughan,  July   7,   1834,   MS. 
Notes  to  British  Leg.,  VI,  1. 

3  6  Webster's  Works,  399,  405. 

4  United    States    v.    Eauscher,    119 
U.  S.  407,  17  Sup.  Ct.  Eep.  234,  30 
L.  ed.  425;  Matter  of  Metzger,  5  How. 
(U.  S.)  176,  12  L.  ed.  104;  Matter  of 
Sheazle,    Fed.    Gas.    No.    12,734;     1 
Wood.  &  M.  (U.  S.)  66;  United  States 
v.    Watts,    8    Saw.    (U.    S.)    370,    14 
Fed.  130;  Ex  parte  McCabe,  46  Fed. 
363,    12   L.   E.   A.   589;    Adriance   v. 
La  Grave,  59  N.  Y.  110,  17  Am.  Eep. 
317;     Commonwealth    v.    Hawes,    13 
Bush   (Ky.),  697,  26  Am.  Eep.   242; 
Commonwealth  v.  Deacon,  10  Serg.  & 
E.  125 ;  Eespublica  v.  De  Longchamps, 

1  Dall.   (Pa.)  Ill,  1  L.  ed.  59;  Sulli- 
van's   Case,    1    Op.    Atty.    Gen.    509; 
Huggen's    Case,    2    Op.    Atty.    Gen. 
452;  Case  of  Two  Portuguese  Seamen, 

2  Op.  Atty.  Gen.  559;  Dewit's  Case, 

3  Op.  Atty.  Gen.  661;  Wing's  Case, 
6  Op.  Atty.  Gen.  431. 

8  Terlinden  v.  Ames,  184  U.  S.  270, 
289,  22  Sup.  Ct.  Eep.  484,  46  L.  ed. 


534,  545,  per  Mr.  Chief  Justice  Ful- 
ler. Mr.  Buchanan,  while  Secretary 
of  State,  said:  "But  the  practice  of 
nations  tolerates  no  right  of  extradi- 
tion. Whatever  elementary  authors 
may  say  to  the  contrary,  one  nation 
is  not  bound  to  deliver  up  persons 
accused  of  crimes  who  have  escaped 
into  its  territories  on  the  demand  of 
another  nation  against  whose  laws 
the  alleged  crime  was  committed. 
The  government  of  the  United  States 
has  from  the  very  beginning  acted 
on  this  principle.  Mr.  Jefferson, 
when  Secretary  of  State  under  the 
administration  of  General  Washing- 
ton, declared  that  'the  laws  of  this 
country  take  no  notice  of  crimes  com- 
mitted out  of  their  jurisdiction.  The 
most  atrocious  offender,  coming  with- 
in our  pale,  is  received  by  them  as 
an  innocent  man,  and  they  have  au- 
thorized no  one  to  seize  or  deliver 
him. '  It  has  been  contrary  to  the 
practice  of  the  United  States  even 
to  request  as  a  favor  that  the  gov- 
ernment of  another  country  should 


341    EXTRADITION  INCLUDED  WITHIN  TREATY-MAKING  POWER.      [§    299 


§  299.  Extradition  included  within  treaty-making  power. — 
That  the  power  to  provide  for  the  extradition  of  those  charged 
with  crime  is  within  the  treaty-making  power  cannot  be  ques- 
tioned. "The  power  to  surrender  is  clearly  included  within  the 
treaty-making  power,  and  the  corresponding  power  of  appoint- 
ing and  receiving  ambassadors  and  other  public  ministers.  Its 
exercise  pertains  to  public  policy  and  governmental  administra- 
tion is  devolved  on  executive  authority,  and  the  warrant  of 


deliver  up  a  fugitive  from  criminal 
justice,  because  under  our  laws  we 
possess  no  power  to  reciprocate  such 
an  act  of  grace.  Since  I  came  into 
the  Department  of  State  the  Presi- 
dent, after  full  deliberation  with  his 
Cabinet,  refused  for  this  reason  to 
prefer  such  a  request  to  the  govern- 
ment of  Texas.  The  truth  is,  that 
it  has  been  for  a  long  time  well  set- 
tled, both  by  the  law  and  practice 
of  nations,  that,  without  a  treaty  stip- 
ulation, one  government  is  not  under 
any  obligation  to  surrender  a  fugi- 
tive from  justice  to  another  govern- 
ment for  trial."  Mr.  Buchanan,  Sec- 
retary of  State,  to  Mr.  Wise,  Septem- 
ber 27,  1845,  MS.  Inst.  Brazil,  XV, 
119. 

In  November,  1863,  eleven  hundred 
African  negroes,  whom  it  was  in- 
tended to  sell  as  slaves,  were  cap- 
tured by  an  officer  of  the  Spanish 
army  named  Don  Jose  Augustin  Ar- 
guelles.  He  at  the  time  was  lieuten- 
ant-governor of  a  district  in  Cuba, 
and  obtained  for  his  action  a  large 
proportion  of  the  prize  money  allowed 
to  the  captors.  He  subsequently  de- 
parted for  New  York,  and  after  he 
left  it  was  ascertained  that  a  number 
of  the  negroes  captured  had  been  re- 
tained by  him  and  his  officers  and 
sold  into  slavery.  The  captain-gen- 
eral of  Cuba,  through  the  United 
States  consul  at  Havana,  requested 
his  surrender,  and  when  Arguelles 


reached  New  York  he  was  arrested 
and  delivered  up  pursuant  to  an  or- 
der of  the  Executive  of  the  United 
States  to  an  agent  of  the  captain- 
general  and  taken  to  Cuba.  Owing 
to  the  celerity  with  which  the  seizure 
and  delivery  were  effected,  no  oppor- 
tunity was  presented  to  obtain  a  writ 
of  habeas  corpus,  but  when  the  news 
became  known  condemnatory  resolu- 
tions were  offered  in  the  House  of 
Eepresentatives,  but  did  not  pass. 
In  the  Senate  a  resolution  was  adopted 
requesting  information  from  the  Presi- 
dent as  to  whether  the  delivery  as 
alleged  was  made,  and  if  so,  under 
what  authority  of  law  or  of  treaty 
it  was  done.  The  President  on  June 
1,  1864,,  transmitted  a  report  of  the 
Secretary  of  State,  saying  that  as 
there  was  no  treaty  in  existence,  the 
extradition  was  made  in  virtue  of  the 
law  of  nations  and  the  constitution 
of  the  United  States,  and  "Although 
there  is  a  conflict  of  authorities  con- 
cerning the  expediency  of  exercising 
comity  toward  a  foreign  government 
by  surrendering,  at  its  request,  one 
of  its  own  subjects  charged  with  the 
commission  of  crime  within  its  terri- 
tory, and  although  it  may  be  con- 
ceded that  there  is  no  natural  obliga- 
tion to  make  such  a  surrender  on  a 
demand  therefor,  unless  it  is  acknowl- 
edged by  treaty  or  by  statute  law, 
yet  a  nation  is  never  bound  to  fur- 
nish asylum  to  dangerous  criminals 


§    300]  TREATIES  OF  EXTRADITION  AND  PROCEEDINGS.  342 

surrender  is  issued  by  the  Secretary  of  State  as  the  representa- 
tive of  the  President  in  foreign  affairs. ' '  6 

Extradition  may  be  denned  as  "the  surrender  by  one  nation 
to  another  of  an  individual  accused  or  convicted  of  an  offense 
outside  of  its  own  territory,  and  within  the  territorial  jurisdic- 
tion of  the  other,  which,  being  competent  to  try  and  to  punish 
him,  demands  the  surrender. ' '  7  Speaking  of  the  distinction  be- 
tween transportation,  extradition  and  deportation,  Mr.  Justice 
Gray  said:  "Strictly  speaking,  transportation,  extradition  and 
deportation,  although  each  has  the  effect  of  removing  a  person 
from  the  country,  are  different  things,  and  have  different  pur- 
poses. Transportation  is  by  way  of  punishment  of  one  convicted 
of  an  offense  against  the  laws  of  the  country.  Extradition  is  the 
surrender  to  another  country  of  one  accused  of  an  offense  against 
its  laws,  there  to  be  tried,  and,  if  found  guilty,  punished.  De- 
portation is  the  removal  of  an  alien  out  of  the  country,  simply 
because  his  presence  is  deemed  inconsistent  with  the  public 
welfare,  and  without  any  punishment  being  imposed  or  contem- 
plated, either  under  the  laws  of  the  country  out  of  which  he  is 
sent  or  those  of  the  country  to  which  he  is  taken. ' ' 8 

§  300.  Delivery  to  the  United  States  as  a  matter  of  comity.— 
There  have  been  several  instances  in  which  fugitives  have  been 
delivered  to  the  United  States  in  the  absence  of  treaties  as  a 
matter  of  comity.  Tweed,  after  his  arrest  in  Cuba,  and  before 
the  conclusion  of  a  treaty  between  the  United  States  and  Spain, 
was  delivered  to  the  United  States,  but  Mr.  Fish,  Secretary  of 
State,  declared:  "The  United  States  has  from  time  to  time  care- 
fully avoided  making  requests  for  the  surrender  of  criminals 
for  the  reason,  among  others,  that  it  might  not  be  possible  to 
reciprocate  in  such  a  matter.  The  government  of  Spain,  in  its 

who  are  offenders  against  the  human  Sup.  Ct.  Eep.  484,  46  L.  ed.  534,  545, 

race;    and   it  is   believed   that   if   in  citing   Holmes    v.    Jennison,    14    Pet. 

any  case  the  comity  could  with  pro-  569,  10  L.  ed.  593.     See,  also,  Tucker 

priety  be  practiced,  the  one  which  is  v.  Alexandroff,  183  U.  S.  424,  22  Sup. 

understood  to   have   called   forth   the  Ct.   Eep.   195,  46  L.   ed.   264. 

resolution   furnished   a    just    occasion  7  Terlinden  v.  Ames,  supra, 

for    its    exercise. /;     Dep.    Cor.    1864,  8  In    Fong    \ue    Ting    v.    United 

pt.  2,  pp.  60,  71;  pt.  4,  p.  35.  States,   149  U.   S.  698,   709,   13   Sup. 

6  Mr.  Chief  Justice  Fuller  in  Ter-  Ct.  Kep.  1016,  1020,  37  L.  ed.  905. 
linden  v.  Ames,  184  U.  S.  270,  289,  22 


343  NO  POWER  TO  RECIPROCATE.  [§    301 

action  in  this  case,  has  appreciated  the  peculiarity  of  the  case. ' ' 9 
Mr.  Clay,  in  1827,  applied  to  the  British  government  for  the 
extradition  of  a  bank-teller  charged  with  robbery.10  The  British 
government  was  reminded  of  the  application  made  by  the  British 
Minister  to  the  United  States  in  1825  for  the  extradition  of  one 
Neilson,  charged  with  forgery  in  Scotland,  which  application  was 
favorably  recommended  to  the  governor  of  New  York.11  In  1828 
the  United  States  requested  from  Mexico  the  extradition  of  per- 
sons of  the  name  of  Harden,  who,  it  was  charged,  had  committed 
a  series  of  murders  in  Tennessee,  and  who  had  fled  to  Texas  and 
taken  refuge  there.  In  accordance  with  this  request,  the  Mexican 
government  directed  that  the  government  of  the  state  of  Coa- 
huila  and  Texas  should  arrest  and  surrender  the  fugitives.  The 
Secretary  of  War  of  the  United  States  was  requested  to  detail  a 
part  of  the  military  force  on  the  border  to  assist  the  agent  of 
the  state  of  Tennessee  in  taking  the  fugitives  to  that  state.12 

§  301.  No  power  to  reciprocate. — It  may  be  stated  that  it 
is  now  the  settled  policy  of  the  United  States  not  to  request 
extradition  except  pursuant  to  treaty  stipulations,  and  hence 
extradition  should  not  be  asked  as  an  act  of  comity  merely.13 
Mr.  Bayard,  in  a  report  to  the  President,  declared:  "During 
the  past  thirty  years  this  government  has  repeatedly  refused  to 
make  a  request  for  extradition  in  the  absence  of  a  treaty,  and 
several  notable  surrenders  of  fugitive  criminals  to  the  United 
States,  among  which  may  be  instanced  that  of  Tweed,  have  been 
made  without  any  request  on  the  part  of  this  government.  But 

9  November     3,     1876,     MS.     Inst.       that    notorious    offenders    should    not 
Spain,  XVIII,   17.  escape    with    impunity."     Mr.    Clay, 

10  He     said    in    his    note    to    Mr.       Secretary  of  State,  to  Mr.  Tudor,  No- 
Tudor,   charge   d'affaires:    "The   ap-       vember    23,    1827,    MS.    Inst.    U.    S. 
plication  which  you  are  thus  instructed       Ministers,  XII,  44. 

to    make    to    the    British   government  u  Governor  Clinton,  of  New  York, 

is  not  founded  upon  strict  right,  that  stated    that    no    sufficient    proof    had 

government  being  under  no  obligation  been  presented  to  justify  the  surren- 

by  any  existing  treaty  or  by  the  pub-  der  of  Neilson.     Governor  Clinton  to 

lie    law    to    surrender    the    fugitive.  Mr.    Clay,    December    19,    1825,    MS. 

It    addresses    itself    solely    to    the  Misc.  Let. 

courtesy   and   discretion  of   that  gov-  12  22    MS.    Dom.    L'et.    275;     Am. 

ernment,  to  its  sense  of  justice,  and  State   Papers  For.   Eel.,   VI,   611. 
to  the  interest  common  to  all  nations  13  Gushing,  6  Op.  Atty.  Gen.    85. 


§§    302,    303]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  344 

where  a  treaty  of  extradition  exists,  it  is  believed  that  the  action 
of  the  executive  branch  of  the  Government  has  uniformly  been 
guided  by  the  principle  that  the  expression  of  one  thing  is  the 
exclusion  of  another.  An  agreement  between  two  nations  to 
comply  with  demands  for  extradition  for  certain  enumerated 
offenses  implies  that  surrender  will  neither  be  granted  nor  asked 
for  others  not  enumerated. ' ' 14 

§  302.  Escape  effected  by  means  of  foreign  vessel. — It  is  not 
a  ground  for  demanding  the  return  of  a  fugitive  that  his  escape 
was  effected  by  foreigners  by  means  of  a  foreign  vessel,15  as  it 
is  probable  that  the  majority  of  fugitives  from  justice  take  this 
means  of  escape,  nor  would  the  fact  that  the  foreign  vessel  was 
a  man-of-war  make  any  difference. 

§  303.  Asking  extradition  as  a  favor. — In  1900  a  request  was 
made  by  the  governor  of  Porto  Rico  that  the  United  States  should 
demand  the  extradition  from  Spain  of  an  individual  charged  with 
murder,  but  Mr.  Hay,  Secretary  of  State,  declined  to  comply,  be- 
cause no  extradition  treaty  between  the  United  States  and  Spain 
existed,  and  the  United  States  could  not,  in  the  absence  of  a 
treaty,  surrender  under  similar  circumstances  a  fugitive  from 
justice.16  The  Mexican  law  does  not  permit  extradition  where 

14  In   the   case   of  William  J.   Me-  sel — this  is  not  regarded  as  a   valid 
Garigle,  September  14,  1887,  17  MS.  ground  for  claiming  a  surrender.     On 
Book,  13.  the     contrary,     this     Department,     in 

15  Mr.  Bayard,  in  his  report  to  the  1872,   as   appears   by   its  records,   in 
President  in  the  case   of  McGarigle,  the  case  of  two  seamen  of  the  U.  S.  S. 
September    14,    1887,    17    MS.    Eept.  'Wachusett/  who  were  charged  with 
Book,    13,   said:    "The   ownership   of  having  committed  larceny  in  the  city 
a  vessel,   or  of  the  vehicle  in  which  of  Leghorn  and  had  escaped  to  that 
a  fugitive  criminal  escapes,  does  not  vessel,    approved    the    action    of    the 
appear  to  have  any  bearing  upon  the  commanding   officer   of  the   European 
question   of   extradition.     It  is   prob-  fleet,  in  refusing  to  comply  with  the 
able  that  a  majority  of  the  fugitive  request  of  the  Italian  authorities  for 
criminals  from  the  United  States,  who  the  surrender  of  the  men,  the  offense 
in    recent    years    have    found    refuge  with    which    they    were    charged    not 
beyond    the    seas,    have    escaped    on  being     included    in     the     extradition 
foreign-owned  vessels;  but  this  is  not  treaty  between  the  United  States  and 
known    ever    to    have    been    made    a  Italy. ' ' 

ground  for  asking  the  extradition  of  16  Mr.  Hay  to  the  Governor  of  Porto 

a    fugitive.     Even    if    the    vessel    in  Rico,   June   19,   1900,   245   MS.  Dom. 

which  the  criminal  flees  should  be  a  Let.     649. 
foreign   man-of-war — a   national   ves- 


345 


ASKING    EXTRADITION    AS    A    FAVOR. 


[§    303 


no  treaty  exists,  unless  the  government  seeking  it  shall  promise 
strict  reciprocity.  Owing  to  the  inability  of  the  United  States 
to  grant  extradition  in  the  absence  of  treaty  stipulations,  this 
government  does  not  occupy  a  position  authorizing  it  to  request 
the  surrender  of  a  fugitive  by  the  Mexican  government  in  a  case 
not  embraced  by  the  treaty.17 

Where  it  was  sought  to  have  the  United  States  request  extra- 
dition from  Chile,  Mr.  Hill,  Acting  Secretary  of  State,  replied: 
"It  has  been  deemed  impolitic  to  ask  of  foreign  governments  a 
favor  which  the  government  could  not  grant.  This  policy  has 
been  maintained  with  few  exceptions  for  a  long  period  of  time, 
and  the  Secretary  of  State  has  directed  that  it  shall  be  observed 
in  the  present  case. ' ' 18 


17  Mr.  Hay,  Secretary  of  State,  to 
Mr.    Graves,    December    7,    1899,    241 
MS.    Dom.    Let.    456. 

18  To  Mr.  Warner,  October  6,  1899, 
240    MS.    Dom.   Let.    407.     Said   Mr. 
Buchanan,  while  Secretary  of  State: 
' '  It   has   been   contrary   to   the   prac- 
tice   of    the    United    States    even    to 
request,    as  a   favor,  that  the  govern- 
ment  of   another   country   should   de- 
liver up  a  fugitive  from  criminal  jus- 
tice because  under  our  laws  we  pos- 
sess no  power  to  reciprocate  such  an 
act  of  grace."     Letter  to  Mr.  Wise, 
September  27,  1845,  MS.  Inst.  Brazil, 
XV,    119.     The    extradition    of    Bill 
Tucker,  alias  John  Nie,  was  requested 
in  1884  from  Guatemala,  with  the  ex- 
planation that  the  United  States  could 
not  promise  reciprocity.     Mr.  Freling- 
huysen,    Secretary    of    State,    to    Mr. 
Gosling,  December  18,  1884,  153    MS. 
Dom.    Let.    459.     In    1797    the    sur- 
render of  persons  charged  with  mur- 
der on  board  of  an  American  vessel, 
who  were  in  confinement  on  a  French 
war  vessel  at  Norfolk,  Virginia,  was 
requested    by    Mr.    Pickering,    Secre- 
tary of  State,  and  the  fugitives  were 
surrendered.     9    MS.    Dom.   Let.,    pp. 
411-415.     In  1855  Mr.  Marcy,  Secre- 


tary of  State,  wrote  to  the  Spanish 
Minister  that  if  he  could  officially  or 
otherwise  request  the  authorities  of 
the  Canary  Islands,  to  which  a  per- 
son charged  with  crime  had  fled,  "to 
interpose  no  unnecessary  obstacle  to 
the  arrest  of  Baker  and  his  return 
to  this  country,  it  would  be  consid- 
ered as  an  act  of  courtesy  which  would 
be  appreciated  and  reciprocated." 
MS.  Notes  to  Spain;  Notes  from 
Spanish  Leg.  In  1878  one  Angell, 
charged  with  embezzlement,  fled  to 
Portugal,  and  Mr.  Evarts,  Secretary 
of  State,  instructed  the  American  rep- 
resentative at  Lisbon  that:  "It  is 
presumed  that  the  government  of  his 
Majesty  will  have  no  difficulty  in  ac- 
ceding to  the  prevalent  opinion  in 
respect  of  extradition,  that  it  is  a 
right  inherent  in  the  sovereignty  of  a 
nation,  and  not  born  of  specific 
treaty  obligations;  while,  on  the  other 
hand,  the  right  to  claim  the  extradi- 
tion of  a  criminal  flows  exclusively 
from  the  reciprocal  stipulations  of 
treaty.  In  this  aspect  of  the  ques- 
tion, this  government  concedes  that 
it  may,  with  perfect  propriety,  ex- 
press to  that  of  his  most  faithful 
Majesty  the  great  satisfaction  which 


304] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


346 


§  304.  Delivery  independent  of  treaty. — While,  as  we  have 
seen,  the  United  States  is  powerless  to  reciprocate  the  delivery 
of  fugitives  in  the  absence  of  treaty,  many  nations,  although  not 
obligated  to  do  so,  have  voluntarily  returned  to  the  United  States 
fugitives  from  justice.  Thus,  in  1888,  Denmark  surrendered  John 
A.  Benson,  charged  with  obtaining  public  lands  through  fraud 
practiced  on  the  government,  and  in  1885  Japan  surrendered 
Calvin  Pratt,  who  was  charged  with  forgery  in  California.19  The 
jurisdiction  of  the  court  to  try  a  prisoner  for  an  offense  com- 
mitted within  its  jurisdiction  is  not  affected  by  the  question 
whether  the  act  of  the  governor  of  the  state  was  illegal  in  pro- 
curing his  return  from  a  foreign  government  with  which  there  is 
no  extradition  treaty.  The  manner  in  which  the  accused  is 
brought  before  the  court  cannot  impair  its  jurisdiction.20 

In  1893  President  Cleveland,  in  his  annual  message  to  Con- 
gress, announced  that  Costa  Rica  had,  as  an  act  of  amity,  surren- 


it  would  have  in  learning  that  the 
latter  is  willing,  as  an  act  of  in- 
ternational comity,  to  cause  the  arrest 
of  Angell,  and  his  surrender  to  a 
duly  authorized  agent  of  this  govern- 
ment to  the  end  that  he  may  be 
brought  to  this  country,  here  to  stand 
his  trial  in  due  form  of  law  for  the 
offense  whereof  he  stands  charged. ' ' 
The  fugitive  was  surrendered,  the 
Portuguese  Minister  expressing  the 
hope  that  if  his  government  should 
have  occasion  to  address  a  similar 
requisition  to  the  United  States  "the 
same  would  be  received  with  equal 
goodwill";  to  which  the  American 
representative  replied  that  "such  ap- 
plication will  meet  with  an  equally 
prompt  and  effectual  response. ' ' 
Portugal  made  application  twice  for 
the  surrender  of  fugitive  convicts,  but 
in  each  instance  the  reply  was  re- 
turned that  in  the  absence  of  a  treaty, 
the  request  could  not  be  complied 
with.  MS.  Desp.  Portugal.  Mr. 
Frelinghuysen,  Secretary  of  State, 
to  Viscount  das  Noguieras,  February 
9,  1883,  MS.  Notes,  Portugal;  Mr. 


Bayard,  Secretary  of  State,  to  Baron 
d'Almeirim,  June  4,  1888,  MS.  Notes, 
Portugal. 

19  4  Moore  Int.  L.  D.  258;  1  Moore 
on  Extradition,  sec.  41,  pp.  47-49.     In 
1817  Sweden  and  Denmark  delivered 
certain  members  of  an  American  ship 
who   were   charged   with   murder   and 
piracy.     Mexico    surrendered    Hardin, 
charged    with    murder    in    Tennessee. 
In    1839    Texas    surrendered    Cooke, 
charged   with   murder   in   Mississippi. 
In      1855      Switzerland      surrendered 
Schrock,    who    was    charged   with   the 
embezzlement     of     public     funds     in 
Ohio.     In    1856    Austria    surrendered 
Morris,   who   was   charged  with   mur- 
der committed  on  an  American  vessel 
on  the  high  seas.     In  1864  Cuba  sur- 
rendered   convicts    who    had    escaped 
from    the   Tortugas.     In    1879   Brazil 
surrendered     Conyngham,     who     was 
charged  with   forgery.     See   1   Moore 
on    Extradition,    sec.    41,    pp.    47-49; 
4  Moore  Int.  L.  D.  258. 

20  People  v.  Pratt,  78  Cal.  345,  20 
Pac.  731. 


347          SURRENDER  NOT  IN  PURSUANCE  OF  TREATY.      [§  305 

dered  to  the  United  States,  upon  duly  submitted  evidence  of 
criminality,  a  fugitive  from  justice  though  no  treaty  of  extra- 
dition was  in  existence.21  In  1886  Mr.  Tree,  the  Minister  of  the 
United  States  at  Brussels,  reported  to  Mr.  Bayard,  Secretary  of 
State,  that  the  administrator  of  the  Congo  had  stated  in  conver- 
sation that  if  the  United  States  should  signify  its  desire  for  the 
extradition  of  a  fugitive  criminal  from  the  independent  state  of 
the  Congo,  the  fugitive,  on  the  presentation  of  proper  proofs, 
would  be  arrested  and  delivered  to  the  American  authorities, 
irrespective  of  the  existence  of  a  treaty  of  extradition  or  re- 
ciprocal arrangement  with  the  United  States.22 

§  305.  Surrender  not  in  pursuance  of  treaty. — When  it  is  pro- 
vided by  a  treaty  that  fugitives  charged  with  certain  crimes 
shall  be  surrendered,  the  reciprocal  duty  of  surrender  does  not 
extend  beyond  the  particular  cases  for  which  the  treaty  has  made 
provision.23  But  each  nation  has  the  right  to  exercise  its  own 
discretion  in  surrendering  fugitives  from  justice  in  cases  not 
covered  by  the  treaty,  and  when  a  fugitive  charged  with  the 
commission  of  a  crime  as  to  which  the  treaty  is  silent  is  surren- 
dered, the  presumption  is  that  the  surrender  was  made  in  the 
exercise  of  the  sovereign  discretion  of  the  surrendering  power, 
and  as  an  act  of  comity.  Where  a  defendant  has  not  been  sur- 
rendered in  pursuance  of  a  treaty,  the  rule  that  he  cannot  be 
tried  for  any  other  offense  than  that  named  in  the  extradition 
proceeding  does  not  apply.  If  he  is  surrendered  for  trial  upon 
a  particular  indictment  referred  to  in  the  warrant  of  arrest  for 
extradition,  the  fact  that  such  indictment  was  set  aside  upon  his 
motion  after  extradition  does  not  justify  a  court  in  discharging 
him  upon  habeas  corpus  when  he  is  arrested  upon  a  complaint 
charging  him  with  the  commission  of  the  same  offense  named  in 
the  indictment  that  was  set  aside.24 

21  For.  Eel.  1893,  V;  4  Moore  Int.  U.  S.  407,  7  Sup.  Ct.  Eep.  234,  30  L. 
L.    D.    258.  ed.  425;  Commonwealth  v.  Hawes,  13 

22  Mr.    Tree    to    Mr.    Bayard,    Sec-  Bush,  697,  26  Am.  Kep.  242. 
retary   of    State,    No.    108,   June    12,          =*  Ex  parte  Foss,  102  Cal.  347,  41 
1886,  For.  Kel.  1886,  33 ;  4  Moore  Int.  Am.    St.   Eep.    182,   36   Pad.   669,   25 
L.   D.   258.  L.  E.  A.  593. 

23  United    States    v.    Eauscher,    119 


§§    306-308]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  348 

§  306.  Delivery  under  immigration  acts. — The  laws  of  the 
United  States  that  authorize  the  return  of  alien  convicts  to  the 
country  to  which  they  belong  may,  incidentally,  have  the  effect 
of  placing  a  criminal  within  the  dominion  of  the  authorities  of 
the  country  from  which  he  made  his  escape.  But  such  laws  do 
not  take  the  place  of  treaties  of  extradition,  and  do  not  authorize 
the  Executive  to  surrender  fugitives  from  justice  on  the  demand 
of  foreign  governments.25 

§  307.  Territory  occupied  by  United  States.— In  1900  the  stat- 
ute was  amended  so  as  to  provide  for  the  extradition  of  persons 
violating  the  laws  of  a  foreign  territory  occupied  by  the  United 
States  or  under  its  control.26  Under  this  provision  Cuba  was 
held  to  be  foreign  territory,  although,  at  the  time,  the  island  was 
under  a  military  government  appointed  by  the  President  of  the 
United  States  for  the  purpose  of  assisting  the  inhabitants  of 
that  island  to  form  a  government  of  their  own.27 

The  Constitution  contains  certain  fundamental  guaranties  of 
life,  liberty  and  property  relating  to  the  writ  of  habeas  corpus, 
bills  of  attainder,  ex  post  facto  laws,  and  trial  by  jury  for  crimes. 
These,  however,  have  no  bearing  on  crimes  committed  without 
the  jurisdiction  of  the  United  States  against  the  laws  of  a  foreign 
country.28 

§  308.  Treaty  measure  of  right. — The  right  to  demand  extra- 
dition depends  upon  the  language  of  the  treaty,  and  is  measured 
and  restricted  by  the  express  or  implied  provisions  of  the  treaty.29 
A  foreign  government  can  claim  no  right  to  demand  the  return 
of  a  fugitive  from  justice  who  has  found  an  asylum  in  the  United 
States,  without  a  treaty  conferring  such  right.30  A  statute  of  a 
state  authorizing  the  governor,  in  his  discretion,  to  deliver  over 

25  4  Moore  Int.  L.  D.  259;  1  Moore  28  Neely  v.  Henkel,  180  U.  S.  109, 
on  Extradition,  sec.  31;  Mr.  Freling-  21  Sup.  Ct.  Eep.  302,  45  L.  ed.  448. 
huysen,    Secretary    of    State,    to    Mr.  29  Commonwealth      v.      Hawes,      76 
Willamov,    November    14,    1882,    MS.  Ky.  (13  Bush)  697,  26  Am.  Rep.  242. 
Notes  to  Russia,  VII,  403.  30  Ex  parte  Dos   Santos,  Fed.   Cas. 

26  See  act  of  June  6,  1900,  amend-  No.  4016,  2  Brock.  493.     But  see  as 
ing  Rev.   Stats.,   sec.   5270.  to  the  law  of  nations  in  the  absence 

27  Neely  v.  Henkel,  180  U.  S.  109,  of  a  treaty,  In  re  Washburn,  3  Wheel. 
21  Sup.  Ct.  Rep.  302,  45  L.  ed.  448.  C.  C.   473;   In  re  Sheazle,  Fed.   Cas. 

No.  12,734,  1  Wood.  &  M.  66. 


349 


CEIME    COMMITTED    WITHIN    JURISDICTION. 


[§  309 


to  justice  any  person  found  in  the  state  who  is  charged  with  a 
crime  committed  out  of  the  jurisdiction  of  the  United  States  is 
unconstitutional.31  Courts  are  not  obligated  by  the  principles  of 
international  law  alone  without  a  treaty  or  statute  to  remand 
prisoners  for  trial  to  a  foreign  government.32  Under  a  treaty 
providing  that  "neither  of  the  contracting  parties  shall  be  bound 
to  deliver  up  its  own  citizens,  under  the  stipulations  of  this 
treaty,"  a  citizen  of  the  United  States  charged  with  a  murder 
committed  in  one  of  the  states  of  Mexico  will  not  be  surren- 
dered.33 The  right  of  foreign  nations  to  demand  the  surrender 
of  fugitives  from  justice  aside  from  treaty  stipulations  has  never 
been  recognized  by  the  United  States.34 


§  309.  Crime  committed  within  jurisdiction. — The  treaties  of 
extradition  provide  usually  for  the  surrender  of  a  person  found 
in  the  territory  of  one  of  the  contracting  powers  for  an  offense 
committed  within  the  jurisdiction  of  the  other.  And  it  should 
appear  that  the  crime  was  committed  within  the  jurisdiction  of 
the  government  demanding  jurisdiction.35  Jurisdiction  is  held 
to  be  convertible  with  the  term  "country."36  An  offense  com- 


31  In  re  Vogt,  50  N.  Y.  321;  S.  C. 
44    How.  Pr.   171. 

32  United  States  v.  Davis,  Fed.  Gas. 
No.  14,932,  2  Sum.  482.     It  was  held 
that  the  treaty  with  France,  respect- 
ing  the   surrender  of   fugitives   from 
justice  could  not  be  executed  by  the 
President  of  the  United  States  in  the 
absence   of  legislation.     In   re   Metz- 
ger,  1  Park.  Cr.  Eep.  108. 

33  Ex  parte  McCabe,  46  Fed.  363,  12 
L.  R.   A.   589.     In  this  case  the  au- 
thorities are  reviewed  at  length  and 
the   court  said:    "If  there  were  no 
pre-existing  obligation  to  extradite  a 
fugitive,  the  obligation  must  neces- 
sarily   grow    out    of    either    statute 
law    or    treaty    engagement.     It    is, 
therefore,  apparent  that  the  purpose 
of    the    treaty   was    to    authorize   the 
parties  to  do  something  which  they 
had    no    previous    authority    to    do. 
The   parties   came   together   through 
their  respective  representatives,  and 


made  an  agreement — an  obligatory, 
binding  agreement — to  surrender, 
under  certain  circumstances,  persons 
who  commit  crimes  and  flee  from 
offended  justice.  They  are  author- 
ized to  act  as  they  bind  themselves. 
The  agreement  is  mutual;  the  rights 
and  obligations  reciprocal.  If  power 
to  surrender  be  not  affirmatively 
given,  the  right  to  demand  a  fugitive 
can  have  no  existence.  The  right 
to  demand  implies  ex  vi  termini,  the 
corresponding  authority  and  obliga- 
tion to  surrender.  But  both  to  exist 
should  be  founded  upon  express  stip- 
ulations. ' ' 

34  In    re    Fetter,    23    N.    J.    L.    (3 
Zab.)   311,  57  Am.  Dec.  382. 

35  Gushing,  Atty.  Gen.  1856,  8  Op. 
215. 

36  Williams,  Atty.  Gen.,  14  Op.  281. 
The    court    had    held    otherwise.     In 
re  Stupp,  11  Blatchf.  124,  Fed.  Gas. 
No.  13,562. 


§    310]  TREATIES    OP    EXTRADITION    AND    PROCEEDINGS.  350 

mitted  on  board  of  a  public  ship  of  war  on  the  high  seas  is  com- 
mitted within  the  jurisdiction  of  the  nation  to  whom  the  ship 
belongs.37 

When  the  Russian  Minister  expressed  a  desire  that  a  proposed 
treaty  of  extradition  should  provide  for  the  extradition  of  per- 
sons charged  with  the  commission  of  crimes  against  the  laws  of 
either  country  committed  outside  of  its  territorial  jurisdiction, 
Mr.  Fish,  Secretary  of  State,  said:  "This  cannot  be  conceded.  It 
is  at  once  repugnant  to  the  policy  of  this  Government  and  to  the 
criminal  jurisprudence  of  the  United  States,  and  in  effect  would 
render  the  municipal  law  of  one  country  operative  within  the 
territorial  sovereignty  of  another  independent  sovereign  power. 
By  the  Constitution  of  the  United  States  an  accused  party  is 
entitled  to  trial  within  the  state  and  district  wherein  the  crime 
shall  have  been  committed ;  no  offender  can  be  tried  in  the  United 
States  for  an  offense  committed  without  its  jurisdiction."38 

§  310.  Crime  not  complete  in  one  country. — But  a  person  who 
is  charged  with  poisoning,  resulting  in  death,  in  Canada,  may  be 
extradited  to  Canada,  although  it  may  appear  that  the  poison, 
if  given  at  all,  was  administered  in  the  United  States.39 

A  British  subject,  charged  with  the  commission  of  murder  on 
board  of  a  British  steamship,  on  which  he  was  a  seaman,  while 
the  vessel  was  lying  at  a  Cuban  port,  was  brought  on  the  regular 
voyage  of  the  steamer  to  New  York.  The  authorities  of  Cuba 
had  refused  to  entertain  jurisdiction  of  the  offense  on  the  ground 
that  it  was  committed  on  board  of  a  British  vessel  by  a  British 
subject.  On  his  landing  in  New  York  the  British  government 
demanded  his  extradition,  which  was  granted.40  But  where  the 
United  States,  in  1891,  requested  of  Great  Britain  the  arrest  of 
a  person  who  had  escaped  from  a  jail  at  Constantinople  and  was 
supposed  to  be  on  his  way  from  New  York  to  England,  it  was 
replied  that  the  British  government  had  no  power  to  arrest  the 

37  President  Adams  to  Mr.  Picker-       Mr.   Jewell,   May   9,   1874,   MS.   Inst. 
ing,  Secretary  of  State,  May  21,  1799 ;       Russia,  XV,  426. 

8  John  Adams'  Works,  651;  1  Moore  39  Sternaman  v.  Peck,  83  Fed.  690, 

on  Extradition,  135;  Wharton's  State  28  C.  C.  A.  377. 

Trials,  392.  40  1  Moore  on  Extradition,  138. 

38  Mr.  Fish,  Secretary  of  State,  to 


351  IRREGULARITIES  IN  EXTRADITION.  [§    311 

fugitive  in  respect  of  his  escape  from  the  Constantinople  prison.41 
It  was  held,  under  the  treaty  between  the  United  States  and 
Great  Britain  of  1899,  providing  for  the  extradition  of  persons 
charged  with  crimes  committed  within  the  jurisdiction  of  either 
nation,  that  extradition  will  not  be  granted  from  the  United 
States  of  a  person  charged  with  the  commission  of  an  offense 
prior  to  the  proclamation  of  Lord  Eoberts  in  1900,  declaring  that 
the  South  African  Republic  was  a  British  colony.42  The  "Ben- 
nington,"  a  war  vessel  of  the  United  States,  in  1894  arrived  off 
the  Golden  Gate,  having  on  board  a  number  of  citizens  of  Sal- 
vador, to  whom  an  asylum  had  been  granted,  and  she  remained 
outside  until  the  23d  of  August.  Instructions  having  been  re- 
ceived from  the  Navy  Department,  she  came  inside  the  harbor, 
when  a  United  States  marshal  served  warrants  on  them  on  charges 
of  crime  preferred  under  the  extradition  treaty  between  Sal- 
vador and  the  United  States.  When  the  prisoners  were  brought 
before  the  federal  district  court,  a  plea  was  interposed  to  the 
court's  jurisdiction  on  the  ground  that  they  were  brought  by  the 
government  of  the  United  States  forcibly  and  against  their  will, 
and  hence  were  not,  within  the  meaning  of  the  treaty,  fugitives 
from  justice,  but  the  court  overruled  the  plea.43  It  was  said  by 
Mr.  Hay,  Secretary  of  State,  that  while  a  conspiracy  formed 
within  the  United  States  to  commit  a  crime  abroad  may  be  pun- 
ishable in  the  United  States,  the  authorities  of  the  government 
within  whose  territory  the  conspiracy  was  to  be  effectuated  could 
not  obtain  the  extradition  of  the  persons  concerned  in  the  con- 
spiracy.44 

§  311.  Irregularities  in  extradition. — A  person  who  has  been 
brought  from  a  foreign  country  by  proceedings  which  violate  a 
treaty  between  that  country  and  the  United  States,  and  which 
are  forbidden  by  that  treaty,  may  raise  the  question  by  a  plea 
to  an  indictment  in  a  state  court,  and  if  the  right  asserted  by  the 
plea  is  denied,  the  supreme  court  of  the  United  States  can  review 

41  Mr.    Lincoln,    Minister    to    Eng-       Law  Eev.,  Jan.-Feb.,  1895;   4  Moore 
land,    to    Mr.    Blaine,    Secretary    of       Int.    L.    Dig.    286. 

State,   No.    485,    June    30,    1891,    168  44  Mr.  Hay,  Secretary  of  State,  to 

MS.  Desp.  from  England.  Baron  Fava,  Italian  Ambassador,  No. 

42  In  re  Taylor,  118  Fed.  196.  654,    March    8,    1901,    MS.    Notes    to 

43  The   Salvadorean   Eefugees,    Am.  Ital.  Leg.,  IX,  508. 


§    312]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  352 

the  judgment  of  the  state  court.45  To  enable  the  supreme  court 
of  the  United  States,  however,  to  review  the  judgment,  the  right 
claimed  must  be  under  the  Constitution,  laws  or  treaties  of  the 
United  States.  If  a  prisoner  has  been  kidnaped  in  a  foreign 
country  and  brought  by  force  against  his  will  within  the  juris- 
diction of  the  state,  the  law  of  which  he  is  charged  with  violat- 
ing, without  attempting  to  proceed  under  the  extradition  treaty, 
although  one  exists,  the  supreme  court  of  the  United  States  is 
powerless  to  grant  relief.46  The  manner  in  which  the  accused 
is  brought  before  a  state  court  does  not  impair  its  jurisdiction. 
Therefore,  it  is  no  objection  to  the  trial  and  detention  of  a  pris- 
oner that  he  has  been  forcibly  abducted  from  another  state,  and 
conveyed  within  the  jurisdiction  of  the  court  detaining  him.47 
Where  a  person  is  held  under  process  legally  issued  from  the 
courts  of  a  state,  the  supreme  court  of  the  United  States  will  not 
interfere  to  relieve  him,  although  he  may  have  been  arrested 
and  taken  by  violence  from  the  territory  of  one  state  to  that  of 
another.48 

§  312.  Indictment  and  trial  valid. — The  courts  have  refused 
to  discharge  a  prisoner  returned  from  another  state  by  means  of 
false  affidavits,49  and  the  state  courts  have  frequently  declined 
to  order  the  discharge  of  a  prisoner  kidnaped  and  taken  from 
another  state ; 50  in  other  words,  it  may  be  stated  that  the  indict- 
ment and  trial  may  be  valid  although  the  original  arrest  was 
illegally  made.51  A  fugitive  from  justice  is  not  guaranteed  by  the 
treaties  of  extradition  an  asylum,  and  such  treaties  do  not  give 
him  any  greater  or  more  sacred  right  than  he  possessed  before. 
Their  object  is  to  provide  that  for  certain  crimes  he  shall  be 
deprived  of  that  asylum  and  surrendered  to  justice,  and  they 
prescribe  the  manner  of  accomplishing  this  object.52 

45  Ker  v.  Illinois,  119  U.  S.  436,  7  Pac.  40,  15  L.  R.  A.   193;   Baker  v. 
Sup.  Ct.  Rep.  225,  30  L.  ed.  421.  State,  88  Wis.  147,  59  N.  W.  572. 

46  Ker   v.    Illinois,    119   U.    S.   436,  51  In  re  Johnson,  167  U.  S.  126,  17 
7  Sup.  Ct.  Rep.  225,  30  L.  ed.  421.  Sup.  Ct.  Rep.  735,  42  L.  ed.  105. 

«  Cook  v.  Hart,  146  U.  S.  183,  13           B2  Ker  v.  Illinois,  119  U.  S.  436,  7 

Sup.  Ct.  Rep.  43,  36  L.  ed.  934.  Sup.  Ct.  Rep.  225,  30  L.  ed.  421.     The 

48  Cook  v.  Hart,  146  U.  S.  183,  13       federal  courts  have  jurisdiction  of  ex- 
Sup.  Ct.  Rep.  40,  36  L.  ed.   934.  tradition    proceedings    under    treaty. 

49  In  re  Moore,  75  Fed.  824.  In   re   Ezeta,    62   Fed.   967.     A   pris- 

50  Kingen  v.  Kelly,  3  Wyo.  577,  28       oner     convicted     of     a     nonextradit- 


353  ACTION    BY   THE    GOVERNMENT.  [§    313 

§  313.  Action  by  the  government. — But  the  government  in 
which  the  arrest  is  made  may  have  a  cause  for  complaint.  In 
1891  Rufino  Rueda  was  arrested  at  Key  West,  for  the  purpose  of 
extradition,  on  a  charge  of  murder  committed  in  Havana.  On 
the  night  of  his  arrest  he  was  taken  by  Spanish  agents,  placed 
on  board  of  a  vessel,  and  taken  to  Havana.  The  United  States 
demanded  his  return  to  American  jurisdiction,  subject  to  such 
extradition  process  as  the  government  of  Spain  might,  under  the 
treaty,  subsequently  institute,  and  in  compliance  with  this  demand 
the  Spanish  government  caused  the  return  of  the  prisoner  to  Key 
West.53 

A  nation  that  claims  a  fugitive  from  justice  has  not  the  right 
to  invade  the  territorial  waters  of  another  state  for  the  purpose 
of  causing  the  arrest  of  such  fugitive.54  In  1892  a  boy,  fifteen 
years  of  age,  a  citizen  of  Canada,  was  kidnaped  in  New  York 
and  enticed  across  the  boundary  into  Canada.  The  British  gov- 
ernment voluntarily  agreed  to  return  him  to  the  place  in  New 
York  from  which  he  had  been  abducted.55 

In  1863  two  Canadian  constables  abducted  two  persons,  Wilson 
and  McElvery,  from  Michigan,  and  Mr.  Seward,  Secretary  of 
State,  complained  of  the  abduction.  The  governor-general  of 
Canada  disavowed  the  action  of  the  officers,  and  expressed  regret 
for  the  occurrence,  and  offered  to  restore  immediately  the  ab- 
ducted persons  should  the  United  States  so  require.  It  appeared 
that  the  persons  abducted  had  violated  the  laws  of  Canada,  and 

able    offense    will    be    refused    a    dis-  charged    on    the    principle    of    comity 
charge  after  a  voluntary  return.     In  between    states,    see    Com.    v.    Shaw 
re  Cross,  43  Fed.  520.     An  extradited  (Pa.),   6  Grim.  L.  Mag.   245.     As  to 
prisoner   claiming   not   to   be   a   fugi-  extradition  effected  by  false  affidavit 
tire  was  refused  a  discharge.     Eaton  authorizing  a  discharge  on  habeas  cor- 
v.    West    Virginia,    91    Fed.    766,    61  pus  after  conviction,  see  State  v.  Jack- 
U.  S.  App.  676,  34  C.  C.  A.  68.     The  son,  36  Fed.   258,   1  L.  R.  A.  370. 
abduction  of  a  prisoner  will  not  pre-  5J  MS.    Inst.    Spain,    XXI,    54,    65; 
vent  his  trial  and  conviction.     Mahon  Dispatch    No.    216,    March    5,    1892, 
v.  Justice,  127  U.  S.  700,  8  Sup.  Ct.  from   the    American   legation   at   Ma- 
Rep.    1204,    32   L.   ed.    283;    State   v.  drid,  124  MS.  Desp.  from  Spain. 
Brewster,  7  Vt.  118;  People  v.  Rowe,  34  MS.   Inst.   Brazil,   XV,   119,   Mr. 
4  Park.  Cr.  Rep.  253;   State  v.  Ross,  Buchanan,  Secretary  of  State,  to  Mr. 
21  Iowa,  467.     But  see  contra,  State  Wise,  September  27,  1845. 
v.    Simmons,    39    Kan.    262,    18    Pac.           M  4  Moore  Int.  Law  Dig.,  p.  330. 
177.     Where     a     prisoner     was     dis- 
Treaties — 23 


§    314]  TREATIES  OF  EXTRADITION  AND  PROCEEDINGS.  354 

had  fled  to  Michigan.  Under  the  circumstances,  Mr.  Seward 
stated  that  he  would  not  insist  on  their  liberation  or  restoration, 
but  would  remit  them  to  the  penalties  which  had  been  adjudged 
against  them  by  the  laws  of  the  country  whose  laws  had  been 
violated  by  them.56 

Mr.  F.  Webster,  Acting  Secretary  of  State,  in  a  note  addressed 
in  1841  to  Mr.  Fox,  the  British  Minister,  stated  that  a  party  of 
British  soldiers  had  entered  a  house  in  Vermont  and  carried  off 
one  Grogan  to  Canada,  and  expressed  the  opinion,  if  the  facts 
should  appear  to  be  as  alleged,  that  the  British  government 
would  liberate  the  prisoner  and  punish  the  offenders.  Mr.  Fox,  in 
response,  stated  that  before  the  receipt  of  any  official  communica- 
tion, but  upon  the  receipt  of  a  report  of  the  matter,  the  British 
government  had  ordered  the  release  of  Grogan  and  his  restoration 
to  the  state  of  Vermont,  should  there  appear  to  be  confirmation 
of  the  reported  illegality  of  his  arrest.  Grogan,  after  an  inves- 
tigation of  the  case,  was  ordered  released,  and  was  conducted  by 
a  sheriff  to  a  place  in  Vermont,  as  near  the  place  of  his  abduction 
as  it  was  possible  to  ascertain.57 

Other  instances  have  occurred  which  have  become  the  subjects 
of  diplomatic  correspondence  between  the  United  States  and 
other  governments,  when  persons  have  been  taken  from  one  coun- 
try to  another,  and  in  which  the  restoration  of  the  rescued  pris- 
oner has  been  demanded. 

§  314.  Criminal  by  the  law  of  both  countries. — It  is  not  neces- 
sary, to  make  an  offense  criminal  by  the  laws  of  both  coun- 
tries, that  there  should  be  absolute  identity  in  the  statutes  de- 
fining the  offense.  Taking,  for  instance,  the  treaty  with  Great 
Britain,  we  find  that  extradition  shall  be  effected  only  "upon 
such  evidence  of  criminality  as,  according  to  the  laws  of  the 
place  where  the  fugitive  or  person  so  charged  shall  be  found, 

56  Mr.  Seward,  Secretary  of  State,  r>T  F.  Webster,  Acting  Secretary  of 

to  Lord  Lyons,  British  Minister,  June  State,    to    Mr.    Fox,    September    28, 

6,  1863,  MS.  Notes  to  Great  Britain,  1841;  Mr.  Fox  to  Mr.  Webster,  Octo- 

X,    67.     Several    cases   have    occurred  ber  21,  and  November  26,  1841;   Mr. 

in  some  of  which  demand  for  return  Webster,   Secretary   of   State,   to   Mr. 

of  "kidnaped   prisoners  was   made   by  Fox,  November  27,  1841,  MS.  Dep.  of 

the  United  States  and  in  others   de-  State. 
mand    was    made    upon    the    United 
States. 


355  BONDS  AND  COUPONS.  [§§    315,    316 

would  justify  his  apprehension  and  commitment  for  trial,  if  the 
crime  or  offense  had  there  been  committed."58  But  under  this 
provision  of  the  treaty  it  is  sufficient  if  the  essential  character 
of  the  transaction  constituting  the  offense  is  the  same,  and  the 
statutes  of  each  country  make  it  criminal.59 

§  315.  Bonds  and  coupons. — Where  copies  of  bonds  and  cou- 
pons were  innocently  made  by  engravers  for  the  use  of  corpora- 
tions as  samples,  and  were  never  delivered  to  the  corporations, 
they  are  not  forged  instruments  so  long  as  they  are  innocently 
retained  by  the  engravers  or  others  to  whom  they  are  delivered. 
But  they  become  forgeries  when  they  are  fraudulenly  uttered  as 
genuine,  even  if  they  are  not  altered.60 

§  316.  Common-law  crimes. — Under  the  treaty  with  Mexico  it 
was  held  that  a  person  may  be  extradited  from  the  United  States 
to  Mexico  for  the  crime  of  forgery  of  an  instrument  which  the 
laws  of  Mexico  make  an  offense,  the  Mexican  authorities  having 
held  him  for  the  offense.  It  was  contended  that  the  real  definition 
of  forgery  was  to  be  found  in  the  common  law  of  England,  and 
that  although  the  transaction  complained  of  might  have  been  a 
cheat,  it  was  not  a  forgery  within  the  meaning  of  the  treaty.  But 
the  court  answered  that  the  common  law  of  England  could  hardly 
be  said  to  be  the  only  criterion  by  which  to  construe  the  lan- 
guage of  a  treaty,  and  that  Mexico  could  not  be  supposed  to  have 
the  common  law  exclusively  in  mind  as  governing  the  true  con- 
struction of  a  treaty  between  it  and  this  country,  neither  of  which 
owed  any  allegiance  to  England.  The  court  further  said  there 
were  no  common-law  crimes  of  the  United  States,  and  that  it 
could  not  be  said  that  the  Mexican  authorities  intended  to  be 
bound  by  any  very  restricted  use  of  the  word  "forgery"  "when 
the  question  concerned  an  offense  of  that  character  committed  in 
Mexico.  It  is  for  an  offense  against  Mexican  law  that  the  pris- 
oner is  held  to  answer. ' ' 61 

38  Treaty  of  1842,  art.  10,  8  Stats.  60  In  re  Count  de  Toulouse  Lautrec, 

at  Large,  572,  576.  102  Fed.  878,  43  C.  C.  A.  42. 

r'°  Wright  v.  Henkel,  190  U.  S.  59,  <"  Benson  v.  McMahon,  127  U.  S. 

23  Sup.  Ct.  Kep.  785,  47  L.  ed.  954;  457,  8  Sup.  Ct.  Kep.  1240,  32  L.  ed. 

In  re  Wright,  123  Fed.  463.  234. 


§§    317,    318]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  356 

§  317.  Embezzling  public  moneys. — It  was  provided  by  the 
treaty  of  December  11,  1861,  between  the  United  States  and  Mex- 
ico that  extradition  might  be  had  of  a  person  charged  with  the 
crime  of  "the  embezzlement  of  public  moneys."  Where  moneys 
were  collected  as  tolls  and  wharfage,  they  became  the  property 
of  the  state  as  soon  as  they  were  collected,  and  to  constitute  them 
public  moneys  it  was  not  necessary  that  they  should  be  first  paid 
into  the  treasury.  For  such  an  embezzlement,  extradition  of  the 
person  charged  can  be  secured  under  the  treaty.62  The  funds  of 
a  private  corporation,  however,  cannot  be  considered  public 
moneys  within  the  meaning  of  the  treaty.63  But  where  a  cashier 
of  a  savings  bank  owned  by  a  city  in  Germany  embezzles  its  funds, 
he  being  a  public  official  appointed  by  the  city,  the  crime  is  an 
embezzlement  of  public  moneys  within  the  meaning  of  that  term 
in  the  treaty  of  1852  between  Prussia  and  the  United  States.64 

The  Penal  Code  of  Cuba  provides  that  a  public  employee  who 
shall  take  public  funds  of  which  he  has  charge  by  virtue  of  his 
office  shall  be  guilty  of  a  crime.  If  such  an  officer  falsely  certi- 
fies to  invoices  in  which  coupons  are  inclosed,  and  obtains  pos- 
session of  money,  which  could  not,  except  in  consequence  of  his 
official  act,  pass  from  the  possession  of  the  bank  to  his  own,  he  is 
guilty  of  an  extraditable  offense.65  If  it  appears  from  the  extra- 
dition papers  that  the  person  charged  received  checks  for  money 
due  a  municipality,  and  deposited  them  in  bank  to  the  credit  of 
the  corporation,  but  that  he  accounted  for  only  a  portion,  suffi- 
cient proof  is  presented  to  warrant  his  delivery.  Whether  the 
amount  unaccounted  for,  as  appeared  from  the  evidence,  was 
greater  or  less  than  the  amount  charged  is,  in  such  a  case,  im- 
material.66 

§  318.  Law  of  the  place. — In  applying  in  particular  cases  the 
definitions  of  crimes  named  in  a  treaty,  the  jurisdiction  and  legis- 
lation of  the  particular  places  of  arrest  will  be  determining  fac- 
tors.67 Where  a  murder  is  committed  on  the  high  seas,  on  board 

62  People   v.   Gray,    66    Cal.    271,    5       firmed,    Oteiza   v.    Jacobs,    136   U.    S. 
Pac.  240.  330,  10  Sup.  Ct.  Eep.  1031,  34  L.  ed. 

63  Blandford  v.  State,  10  Tex.  App.       464. 

627.  ce  In   re   Breen,   73   Fed.   458. 

64  In  re  Reiner,  122  Fed.   110.  6T  In  re  Muller,  Fed.  Gas.  No.  9913. 

65  In    re    Cortes,    42    Fed.    47;    af- 


'  357  LAWS  OF  THE  PLACE  OF  REFUGE.  [§  319 

of  a  British  war  vessel,  it,  within  the  meaning  of  the  treaty  of 
extradition  of  1794,  was  within  the  jurisdiction  of  Great  Britain, 
and  the  government  of  the  United  States,  should  the  accused  be 
found  in  the  country,  is  compelled  to  surrender  him.68  Forgery, 
as  defined  and  recognized  by  the  courts  of  England,  does  not  in- 
clude the  making  of  false  entries  in  the  usual  books  of  account, 
or  memoranda  on  slips  directing  such  entries  by  others,  made  by 
an  officer  or  employee  of  a  bank,  for  the  purpose  of  concealing 
embezzlements  made  by  him.  A  person  will  be  discharged  on 
habeas  corpus  where  he  is  held  to  extradition  for  forgery  and  the 
only  proof  consists  of  such  acts  committed  in  England.69 

§  319.  Laws  of  the  place  of  refuge. — Under  a  treaty  between 
the  United  States  and  France,  it  was  provided  that  the  laws  of 
the  place  of  refuge  were  to  be  applied  to  the  investigation,  as  if 
the  crimes  had  been  committed  at  the  place  of  arrest,  but  it  was 
held  that  on  the  question  whether  an  extraditable  offense  had 
been  committed  or  not,  the  laws  of  France,  and  not  those  of  the 
'  United  States,  should  form  the  basis  of  inquiry.70 

The  term  "forgery,"  as  used  in  the  treaty  between  Austria- 
Hungary  and  the  United  States,  includes  the  crime  of  uttering 
forged  papers.71  The  third  article  of  the  treaty  between  the 
United  States  and  Salvador,  in  defining  murder,  states  that  it 
comprehends  "the  crimes  designated  in  the  penal  codes  of  the 
contracting  parties  by  the  terms  'homicide,'  'patricide,'  'assas- 
sination,' 'poisoning'  and  'infanticide.'  :  The  Penal  Code  of  San 
Salvador  defines  murder  as  homicide  "committed  with  premedi- 
tation and  under  one  of  the  following  circumstances:  (1)  With 
perfidy  or  a  breach  of  trust;  (2)  for  a  price  or  promise  of  re- 
ward; (3)  by  means  of  flood,  fire  or  poison.  The  crime  of 
murder  will  be  punished  with  the  penalty  of  death."  The  same 
code  defines  homicide  as  the  killing  of  another  "with  premedita- 

68  United    States    v.    Bobbins,    Fed.  crime   for   which   extradition   may  be 
Cas.    No.    16,175;    United    States    v.  had,   although   the   crime   is   not   sub- 
Cooper,  Whart.  St.  Tr.  659,  Fed.  Cas.  ject  to  such  punishment  in  the  United 
No.  14,865.  States.     In   re   Farez,   Fed.    Cas.   No. 

69  In  re  Tully,   20  Fed.  812.  1645,  7  Blatchf.  345.     See  as  to.mur- 

70  In    re    Metzger,    Fed.    Cas.    No.  der  and   manslaughter,  In  re  Kelley, 
9511.     Under  the  treaty  with  Switzer-  Fed.  Cas.  No.   7655,  2  Low.  339;   In 
land,    a    crime    subject    to    infamous  re  Palmer,  Fed.  Cas.  No.  10,679. 
punishment     in     that     country      is     a  71  In  re  Adult,  55   Fed.  376. 


§  320] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


358 


tion,  and  without  any  of  the  circumstances  enumerated  in  the 
preceding  article,  or  under  some  one  of  said  circumstances,  and 
without  premeditation."  The  penalty  for  homicide  is  punish- 
ment at  hard  labor.  It  was  held  that  homicide  as  thus  denned 
constituted  murder  within  the  meaning  of  the  treaty.72  But 
where  a  person  was  killed  in  Salvador  by  the  President  and  his 
officer  under  the  jurisdiction  of  the  military  law  of  that  country, 
the  offense  is  not  extraditable.73 


§  320.  Forgery  in  the  third  degree. — The  Mexican  government 
held  that  the  making  of  original  false  entries  in  books  of  account, 
constituting  forgery  in  the  third  degree  under  the  law  of  Missouri, 
did  not  constitute  forgery  within  the  meaning  of  the  treaty  which 
in  the  Spanish  text  employed  the  word  * '  f  alsificacion. ' '  74  But 
where  a  treaty  uses  general  terms,  such  as  ' t  murder  "  or  ' '  arson, ' ' 
it  does  not  follow  that  their  meaning  is  to  be  interpreted  solely 
by  the  common  law,  but  they  may  be  interpreted  according  to 
the  law  of  the  two  countries  as  it  exists  when  extradition  is 
sought.75 


72  In  re  Ezeta,  62  Fed.  972. 

7:5  In  re  Ezeta,  62  Fed.  972. 

7*  Mr.  Foster,  Secretary  of  State, 
to  Mr.  Byan,  Minister  to  Mexico,  No. 
837,  October  17,  1902,  MS.  Inst.  Mex- 
ico, XXIII,  288. 

75  Cohn  v.  Jones,  100  Fed.  639.  A 
case  came  before  the  United  States 
circuit  court  for  the  northern  dis- 
trict of  California  on  a  petition  for 
a  writ  of  habeas  corpus,  where,  among 
other  questions,  the  point  was  urged 
that  under  the  treaty  with  Japan 
forgery  was  not  committed  where  a 
signature  was  obtained  to  a  paper 
by  fraud.  It  appeared  that  a  mer- 
cantile firm  in  Japan  had  been  in  the 
habit  of  furnishing  military  machin- 
ery and  supplies  to  a  Japanese  ar- 
senal, and  for  several  years  had  em- 
ployed the  accused  to  receive  the  sup- 
plies and  to  verify  the  statements 
furnished,  while  all  the  pecuniary 
transactions  were  attended  to  by  a 


member  of  the  firm,  which  had  been 
in  the  habit  of  furnishing  their  state- 
ments and  invoices  in  French.  The 
accused,  however,  stated  to  the  man- 
aging partner  that  it  would  be  more 
convenient  for  those  in  charge  of  the 
arsenal  if  the  invoices  should  in  the 
future  be  made  out  in  Japanese,  and 
to  such  procedure  consent  was  given. 
The  accused  presented  to  the  manag- 
ing partner,  written  entirely  in  Jap- 
anese, what  purported  to  be  an  in- 
voice, but  which  in  reality  was  a  re- 
ceipt on  which  the  accused  collected 
money.  It  was  contended  on  one  side 
that  this  constituted  forgery,  because 
the  accused  had  made  his  employer 
his  unconscious  agent  in  completing 
the  document;  while,  on  the  other,  it 
was  urged  that  the  act  constituted 
either  embezzlement  or  obtaining 
money  by  false  pretenses,  offenses 
not  extraditable.  Another  charge  was 
also  made  against  the  prisoner  of  al- 


359  RETROACTIVE  EFFECT  OF  TREATIES.  [§  321 

§  321.  Retroactive  effect  of  treaties. — An  extradition  treaty 
is  not  in  the  nature  of  an  ex  post  facto  law  within  the  meaning 
of  the  Constitution,  and  hence,  unless  a  clause  is  inserted  to  the 
contrary,  it  will  cover  offenses  committed  prior  to  its  ratifi- 
cation.70 An  extradition  treaty  was  concluded  February  22, 
1899,  between  the  United  States  and  Mexico,  which  provided  in 
its  eighteenth  article  that  it  "shall  take  effect  from  the  date  of 
exchange  of  ratifications,  but  its  provisions  shall  be  applied  to  all 
cases  of  crimes  or  offenses  enumerated  in  article  II  which  may 
have  been  committed  since  the  twenty-fourth  day  of  January, 
1899."  Mr.  Hay,  Secretary  of  State,  in  a  note  to  the  Mexican 
Ambassador,  stated  that  while  the  Department  of  State  did  not 
deem  the  question  entirely  free  from  doubt,  it  had  reached  the 
conclusion  that  in  view  of  the  stipulations  contained  in  the  eigh- 
teenth article,  the  treaty  did  not  authorize  extradition  for  offenses 
committed  prior  to  January  24,  1899.77  In  his  annual  message  of 
December  7,  1903,  President  Roosevelt  said:  "Steps  have  been 
taken  by  the  State  Department  looking  to  the  making  of  bribery 
an  extraditable  offense  with  foreign  powers.  The  need  of  more 
effective  treaties  covering  this  crime  is  manifest. ' '  78 

Charles  Kratz,  charged  with  the  commission  of  bribery  in 
Missouri,  fled  to  Mexico,  and  in  October,  1903,  the  United  States 
asked  for  his  extradition,  although  at  the  time  when  the  offense 
was  committed  the  crime  was  not  included  in  the  treaty  of  extra- 
dition between  the  United  States  and  Mexico,  but  was  embraced 
in  a  supplemental  convention,  which  subsequently  became  opera- 
tive. The  law  of  Mexico  of  1897  authorized  extradition  to  be 
granted  where  there  was  no  treaty  covering  the  subject,  on  the 
promise  that  reciprocity  would  be  made.  The  United  States, 
basing  its  action  on  the  latter  convention,  made  a  promise  of 
reciprocity,  saying  that  according  to  the  decision  of  the  federal 
courts,  an  extradition  treaty  has,  in  the  United  States,  a  retro- 

tering   the    figures   in   an   instrument,  7C  In    re    Giacomo,    Fed.    Gas.    No. 

so  that  the  first  question  became  in-  3747,    12    Blatchf.    391.     This   is   the 

volved  in  the  second,  and  practically  general  rule.     Twiss '  Law  of  Nations, 

was     not    necessary    to    be     decided.  ed.   1884,  411. 

The  writ  of  habeas  corpus  was  denied  "  July  11,  1899,  MS.  Notes  to  Mex- 

and    the    prisoner    remanded.     In    re  ican  Leg.,  X,  469,  No.  17. 

Oyama    Kenichi,   No.    12,579,   decided  78  For.  Eel.   1903,  XV. 
April   8,   1898. 


§§    322,    323]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  360 

active  operation,  where  no  express  stipulation  to  the  contrary 
exists,  and  accordingly  the  extradition  of  Kratz  was,  after  exam- 
ination, effected.79 

§  322.  Special  stipulation  as  to  time  of  taking  effect. — If, 
however,  a  treaty  expressly  provides  that  it  shall  not  apply  to 
crimes  committed  anterior  to  its  date,  and  it  specifies  no  date  when 
it  shall  take  effect,  the  date  of  its  conclusion  will  be  deemed  the 
date  on  which  it  becomes  effective.80  But  where  the  treaty  de- 
clares that  it  shall  not  apply  to  offenses  committed  prior  to  its 
date,  and  that  it  shall  take  effect  twenty  days  after  the  exchange 
of  ratification,  the  treaty  will  apply  to  an  offense  committed  the 
day  after  the  exchange  of  ratifications,  as  the  reference  to  the 
date  of  the  treaty  was  either  the  date  of  the  signing  or  the  date 
of  the  exchange  of  ratifications,  and  not  the  time  when  it  should 
take  effect.81  A  statute  of  a  state  making  an  act  a  crime, 
enacted  after  the  date  of  a  treaty,  will  sustain  an  application 
for  extradition,  where  the  statute  was  in  force  at  the  time  when  the 
offense  was  committed  and  when  the  application  was  heard.82 

§  323.  Extradition  of  citizens. — In  many  of  the  extradition 
treaties  it  is  expressly  provided  that  neither  of  the  contracting 
powers  shall  be  obliged  to  deliver  up  its  own  citizens.  But  it  is 
not  necessary  for  the  government  seeking  extradition  to  allege 
or  prove  that  the  fugitive  is  not  a  citizen  of  the  demanding  gov- 
ernment. Citizenship  is  a  matter  of  defense.83  But  the  United 
States  "is  ever  ready  to  annul  or  to  narrow  the  exemptions  con- 
tained in  its  extradition  treaties  based  on  the  citizenship  of  the 
fugitive."84  Citizenship  is  not  conferred  by  a  declaration  of 
intention  to  become  a  citizen.85  Where  a  different  mode  of  trial 

79  Tor.  Eel.  1903,  674.  82  In  re  Muller,  Fed.  Gas.  No.  9913. 

80  Matter  of  Metzger,  5  N.  Y.  Leg.  s:i  Mr.  Gresham,  Secretary  of  State, 
Obs.  83.  to  the  Attorney  General,  May  22,  1893, 

81  In  re  Vandervelpen,  Fed.  Gas.  No.  .192    MS.    Dom.    Let.    82. 

16,844,  14  Blatchf.  137.  In  this  case  84  Mr.  Olney,  Secretary  of  State,  to 
the  treaty  was  between  the  United  Mr.  Ransom,  Minister  to  Mexico,  De- 
States  and  Belgium,  and  the  date  of  cember  13,  1895,  For.  Eel.  1895,  II, 
the  signing  of  the  treaty  was  March  1008,  1009. 

19,    1874.     The   exchange   of   ratifica-  M  Mr.    Olney,    Secretary    of    State, 

tions  was  effected  on  April  30,  1874,  to  Mr.  Tounsend,  November  13,  1896, 

and   the   crime   for  which   extradition  213   MS.   Dom.  Let.   680,  in  the  case 

was  sought  was  committed  in  Belgium  of  Antonio  Vizcarra. 
en  May  1,  1874. 


361  TREATY  PROVISIONS.  [§    324 

is  not  prescribed  by  the  treaty,  an  American  citizen '  who  is 
charged  with  crime  in  a  foreign  country  cannot  complain  if  he 
is  forced  to  yield  to  such  modes  of  trial  and  punishment  as  the 
laws  of  such  country  provide  for  its  own  people.86  Yet  a  gov- 
ernment may  refuse  to  subject  its  citizens  to  forms  of  trial 
unknown  to  its  laws  and  abhorrent  to  its  government  and  people.87 
The  treaty  concluded  between  the  United  States  and  the 
Argentine  Republic,  September  26,  1896,  provided  that  in  no  case 
should  the  nationality  of  the  accused  be  an  impediment  to  his  ex- 
tradition, but  the  Senate  of  the  United  States,  January  28,  1898. 
amended  the  treaty  by  adding  the  clause,  "but  neither  govern- 
ment shall  be  bound  to  deliver  its  own  citizens  for  extradition 
under  this  convention;  but  either  shall  have  power  to  deliver 
them  up,  if,  in  its  discretion,  it  be  deemed  proper  to  do  so."  This 
amendment  was  inserted  in  the  treaty  as  ratified  and  proclaimed 
lay  the  two  governments.88 

§  324.  Treaty  provisions. — The  Italian  penal  code  forbids  the 
extradition  of  Italian  subjects.  The  United  States,  in  1890,  de- 
manded the  extradition  of  two  Italians,  who  had  committed 
murder  in  the  United  States  and  had  fled  to  Italy.  The  Italian 
government  refused  to  surrender,  but  they  were  arraigned  under 
the  Italian  law  for  crimes  committed  in  the  United  States  and 
were  convicted.89  Mr.  Elaine  contended  in  the  diplomatic  cor- 

86  Neely  v.  Henkel,  180  U.  S.  109,  States.     He   said:    "I   have   had   the 
21  Sup.  Ct.  Eep.  302,  45  L.  ed.  448.  honor    to    receive    your    note    of    the 

87  Mr.  Fish,  Secretary  of  State,  to  20th  of  April  last,  in  relation  to  the 
Mr.   Jewell,   May   9,    1874,   MS.    Inst.  cases  of  the  two  Italian  subjects,  Bevi- 
Kussia,    XV,    426.  vino   and   Villella,   who,    having   com- 

88  Mr.  Day,   Secretary  of   State,  to  mitted  murders  in  the  United  States 
Mr.   Viso,   May   26,   1898,  MS.  Notes  of  a    most   aggravated   and   atrocious 
to  Argentine    Leg.,  VII,  29.  character,  have  sought  asylum  in  their 

89  One  received  a  sentence  of  twenty  own    country,    which    has    refused    to 
years'  imprisonment  and  the  other  of  comply  with  the  demand  of  this  gov- 
fifteen  years.     Mr.  Gresham,  Secretary  ernment,  based  upon  treaty,  for  their 
of    State,    to    the    governor    of   Penn-  extradition.     The   immediate   occasion 
sylvania,  January  31,  1894,  195  MS.  of  your  note  was  the  reply  made  by 
Dom.  Let.  329.  me  to  your  request  for  the  execution 

Mr.   Elaine,   Secretary  of  State,  in  in  this  country  of  letters  rogatory  is- 

his  note  to  the  Italian  Minister,  Baron  sued  by  a  court  in  Italy,  before  which 

Fava,    of    June    23,    1890,    expressed  the  two  fugitives  have  been  arraigned 

the  views  on  the  subject  entertained  for  trial,  under  Italian   law,   for  the 

by    the    government    of    the    United  crimes  committed  in  the  United  States. 


§  324] 


TREATIES   OP   EXTRADITION   AND   PROCEEDINGS. 


362 


respondence  on  the  subject  that  citizens  were  not  exempted  from 
surrender  by  international  law,  and  that  it  had  been  well  under- 
stood when  dealing  with  the  United  States  that  "citizens"  were 


In  that  reply  I  stated  that,  with  a 
view  to  preventing,  if  possible,  the 
total  defeat  of  the  ends  of  justice 
in  the  cases  in  question,  I  would  for- 
ward the  letter  to  the  governors  of 
the  States  of  Pennsylvania  and  New 
York  for  such  action  as  they  might 
find  it  proper  to  take,  the  letters  be- 
ing respectively  addressed  to  the  au- 
thorities in  those  States.  At  the  same 
time  I  took  occasion  to  reserve  what 
I  regarded  as  the  clear  right  of  the 
Government  of  the  United  States,  un- 
der the  treaty  with  Italy,  -to  require 
the  delivery  of  the  fugitives  for  trial 
in  this  country. 

' '  In  answer  to  this  you  remind  me 
that  this  question  has  been  discussed 
at  length  and  entirely  settled  by  the 
royal  ministry  of  foreign  affairs  and 
the  United  States  legation  at  Kome; 
that  Mr.  Stallo,  lately  the  minister 
of  the  United  States  to  Italy,  must 
have  informed  this  Department  that, 
according  to  Italian  law,  no  citizen 
can  be  removed  from  the  jurisdiction 
of  his  natural  judges,  the  judges  of 
his  own  country;  and  that,  although 
an  exception  is  made  to  this  principle 
when  a  citizen  who  has  committed  a 
crime  in  a  foreign  country  is  there 
arrested,  it  nevertheless  resumes  its 
force  when  he  returns  to  his  own 
country.  You  also  state  that  the  new 
Italian  penal  code  expressly  forbids 
the  extradition  of  Italian  subjects,  and 
declare  that  this  principle  now  forms 
a  part  of  public  law,  which  the  United 
States  has  recognized  in  many  of  its 
treaties 

"You  are  correct  in  your  supposi- 
tion that  Mr.  Stallo  informed  the  De- 
partment of  the  provisions  of  Italian 
law  on  the  subject,  but  the  Depart- 


ment is  surprised  to  learn  that  the 
Government  of  Italy  entertair.s  the 
impression  that  the  question  was  set- 
tled by  the  royal  ministry  of  foreign 
affairs  and  the  United  States  lega- 
tion at  Eome.  In  various  interviews 
with  the  royal  ministry  of  foreign 
affairs  reported  by  him  to  the  De- 
partment, as  well  as  in  formal  com- 
munications addressed  to  that  minis- 
try, Mr.  Stallo  protested  against  the 
position  of  the  Italian  Government; 
and  the  Department  is  not  informed 
of  anything  said  or  written  by  him 

that  savored  of  acquiescence 

' '  In  order  to  understand  the  pres- 
ent controversy,  it  is  necessary  to  re- 
vert to  its  origin.  It  did  not  arise 
in  the  cases  of  Villella  and  Bevivino, 
but  in  that  of  Salvatore  Paladini, 
whose  extradition  Mr.  Stallo,  on  May 
17,  1888,  demanded  of  the  Italian 
Government  on  a  charge  of  passing 
counterfeit  money  of  the  United 
States,  for  which  Paladini  was  under 
indictment  in  the  district  court  of 
the  United  States  for  the  district  of 

New    Jersey On    October    25, 

Mr.  Crispi,  more  than  5  months  after 
the  original  demand,  announced  that, 
according  to  the  Italian  procedure, 
the  minister  of  grace  and  justice  had 
submitted  the  demand  to  the  succes- 
sive examination  of  the  criminal  sec- 
tion of  the  court  of  appeals  of  Mes- 
sina, of  the  council  of  state,  and  of 
the  council  of  ministers,  and  that 
they  were  unanimously  of  opinion  that 
Paladini  should  not  be  extradited,  for 
the  reason  that  he  was  an  Italian 
subject.  This  opinion,  he  said,  was 
based  upon  certain  principles,  which 
he  stated.  It  is  unnecessary  to  re- 
count them,  since  they  are  the  same, 


363 


TREATY    PROVISIONS. 


[§  324 


embraced  by  the  general  term  "persons,"  and  unless  they  were 
expressly  exempted  by  the  language  of  the  treaty,  they  should 
be  extradited  when  a  proper  application  was  made  for  that  pur- 


in  almost  the  same  language,  as  those 
set  forth  in  your  note. 

*  *  In  January,  1899,  the  Department 
received  from  Governor  Beaver,  of 
Pennsylvania,  information  that  two 
Italians,  named  Vincenzo  Villella  and 
Giuseppe  Bevivino,  charged  with  the 
commission  of  atrocious  murders  in 
Luzerne  County,  Pa.,  had  taken  refuge 
in  Italy.  The  Department  at  once 
telegraphed  information  of  the  facts 
to  the  legation  at  Borne.  Mr.  Stallo 
saw  the  minister  of  foreign  affairs, 
and,  laying  the  facts  before  him,  was 
assured  that  measures  would  at  once 
be  taken  for  the  arrest  of  the  ac- 
cused and  i or  their  eventual  trial  in 
Italy  as  soon  as  he  could  give  their 
names,  which  he  was  at  that  time  un- 
able to  do,  owing  to  a  confusion  in 
the  telegrams. 

"On  January  30,  1889,  Governor 
Beaver  made  a  formal  request  that 
the  extradition  of  the  fugitives  be  de- 
manded. He  had  been  informed  of 
the  attitude  of  the  Italian  Govern- 
ment in  the  case  of  Paladini,  but 
because  of  the  importance  of  inflict- 
ing punishment  upon  the  criminals  in 
Pennsylvania,  and  influenced  by  an 
opinion  which,  he  had  been  informed, 
had  been  expressed  by  the  Italian 
consul  at  Philadelphia  to  the  effect 
that  the  fugitives  would  be  given  up, 
he  asked  the  Department  to  endeavor 
to  obtain  their  surrender.  A  Presi- 
dent's warrant  was  accordingly  is- 
sued to  John  B.  Saville  and  Frank 
P.  Dimaio,  the  persons  designated  by 
Governor  Beaver  to  receive  the  fugi- 
tives, and  Mr.  Stallo  was  so  informed. 
These  agents,  Mr.  Stallo  was  also  in- 
formed, would  take  with  them  authen- 
tic proof  of  the  guilt  of  the  fugi- 


tives, and  upon  arriving  in  Italy 
would  proceed  at  once  to  Borne  to 
consult  with  him.  Meanwhile  he  was 
to  ascertain  whether  the  extradition  of 
the  fugitives  could  be  obtained,  and 
to  apply  to  the  Italian  Government 
for  that  purpose. 

"On  February  20,  Mr.  Stallo  ac- 
knowledged the  receipt  of  the  papers, 
which  he  transmitted  to  the  foreign 
office,  with  an  application  for  the  fu- 
gitive's surrender,  coupled  with  an 
expression  of  the  earnest  desire  of 
the  United  States  that  the  determina- 
tion in  the  Paladini  case  should  be 
reconsidered.  Mr.  Stallo  also  called 
attention  to  the  fact  that  the  princi- 
pal witness  against  the  two  fugitives 
was  their  accomplice,  Michele  Bizzolo, 
who  was  under  arrest  at  Wilkes-Barre, 
in  Pennsylvania,  and  had  made  a  full 
confession,  and  that  it  was  imprac- 
ticable to  bring  this  witness,  either 
before  or  after  his  trial,  to  Italy  in 
order  to  testify  before  an  Italian 
court. 

"On  the  7th  of  March,  Mr.  Stallo 
enclosed  to  the  Department  a  note 
from  Mr.  Crispi,  bearing  date  of  the 
preceding  day,  in  which  the  surrender 
of  the  fugitives  was  refused.  The 
reasons  given  were  the  same  as  those 
stated  in  the  case  of  Paladini. 

"It  was  in  view  of  the  total  di- 
vergence of  opinion  between  this  Gov- 
ernment and  that  of  His  Majesty,  de- 
veloped in  the  preceding  correspond- 
ence, that  I  deemed  it  necessary  to 
make  the  reservation  contained  in  my 
note  of  the  21st  of  March  last.  I 
shall  now  endeavor  to  show  that  that 
reservation  was  not  only  justified,  but 
also  required,  by  the  circumstances. 


§  324] 


TREATIES  OF  EXTRADITION  AND  PROCEEDINGS. 


364 


pose.  The  chief  purpose  of  entering  into  extradition  treaties, 
he  said,  was  to  assure  the  punishment  of  the  criminal  at  the  place 
where  the  crime  wras  committed. 


• '  i  do  not  understand  the  Italian 
Government  to  deny  that  the  provi- 
sions of  the  treaty  of  1868,  if  not 
obstructed  by  any  municipal  statute 
or  qualified  by  any  principle  of  in- 
ternational law,  would  oblige  the  con- 
tracting parties  to  deliver  up  their 
citizens.  Indeed,  I  assume  this  to  be 
admitted.  The  treaty  says  that  the 
two  governments  mutually  agree  to 
deliver  up  'persons  who,  having  been 
convicted  of  or  charged  with  the  crime 
specified  in  the  following  article  com- 
mitted within  the  jurisdiction  of  one 
of  the  contracting  parties,  shall  seek 
an  asylum  or  be  found  within  the  ter- 
ritories of  the  other.'  As  the  term 
'persons'  comprehends  citizens,  and 
as  the  treaty  contains  no  qualifica- 
tion of  that  term,  it  is  unnecessary 
to  argue  that  the  treaty  standing  alone 
would  require  the  extradition  by  the 
contracting  parties  of  their  citizens  or 
subjects. 

"I  shall  also  assume  it  to  be  ad- 
mitted by.  the  Italian  Government  that 
the  parties  to  a  treaty  are  not  per- 
mitted to  abridge  their  duty  under  it 
by  a  municipal  statute.  It  is  true 
that  the  authorities  of  a  country  may, 
by  reason  of  such  a  statute,  find  them- 
selves deprived  of  the  power  to  exe- 
cute a  treaty.  But  if,  in  obeying  the 
statute,  they  violate  or  refuse  to  ful- 
fill the  treaty,  the  other  party  may 
justly  complain  that  its  rights  are 
disregarded  and  may  treat  the  conven- 
tion as  at  an  end.  Hence,  in  appeal- 
ing to  its  statutes  to  justify  its  ac- 
tion in  the  present  case,  T  understand 
the  position  of  the  Italian  Govern- 
ment to  be  that  those  statutes  are 
merely  declaratory  of  the  law  by 
which  nations  are  bound  to  be  gov- 


erned in  their  dealings  one  with  an- 
other. 

1 '  We  are  brought,  therefore,  to  the 
consideration  of  the  question  whether 
the  refusal  of  the  Italian  Government 
to  deliver  up  Paladini,  Villella,  and 
Bevivino,  under  the  treaty  of  1868, 
is  justified  by  the  principles  of  inter- 
national law.  The  answrer  to  be  given 
to  this  question  must  be  decisive  of 
the  matter. 

"It  is  stated — and  the  statement 
has  the  sanction  of  the  eminent  Italian 
publicist,  Fiore — that  the  refusal  to 
surrender  citizens  had  its  origin  in  the 
practice  of  extradition  by  France  and 
the  Low  Countries  in  the  eighteenth 
century.  Formerly  such  an  exception 
was  not  recognized.  Even  the  Eom- 
ans,  who  were  not  wanting  in  a  dis- 
position to  assert  their  imperial  pre- 
rogatives, did  not  refuse  to  deliver 
up  their  citizens,  their  feciales  being 
invested,  in  respect  to  states  in  alli- 
ance with  Kome,  with  authority  to 
investigate  complaints  against  Roman 
citizens  and  to  surrender  them  to  jus- 
tice if  the  complaints  were  found  to 
be  well  grounded.  The  exception  of 
their  citizens  by  France  and  the  Low 
Countries  originated  in  the  following 
manner : 

' '  The  two  countries  practiced  ex- 
tradition, not  under  a  convention,  but 
under  independent  declarations  of  a 
general  character.  By  the  Braban- 
tine  Bull,  issued  by  the  German  Em- 
peror in  the  fourteenth  century,  sub- 
jects of  the  Duke  of  Brabant  enjoyed 
the  privilege  of  not  being  withdrawn 
from  his  jurisdiction.  A  similar 
privilege  was  gradually  extended  by 
law  and  usage  to  other  subjects  of 
the  House  of  Austria,  while  the  Low 


365 


POSITION  OF  THE  UNITED  STATES. 


[§  325 


§  325.  Position  of  the  United  States.— In  1894  the  Minister 
of  Italy  submitted  a  draft  of  a  supplementary  extradition  treaty, 
providing  that  neither  party  should  be  obliged  to  surrender  its 


Countries  were  still  under  its  do- 
minion. In  consequence  of  the  es- 
tablishment of  this  rule,  the  Low 
Countries  refused  to  deliver  up  their 
subjects,  and  France,  as  an  act  of 
retaliation,  refused  to  surrender 
Frenchmen.  Thus,  not  in  recognition 
of  any  principle,  but  merely  with  a 
view  to  observe  a  strict  reciprocity, 
was  the  precedent  first  established. 

1 '  That  the  example  thus  set  has 
generally  been  followed  by  European 
states  is  not  to  be  questioned;  for, 
with  the  single  exception  of  England, 
it  is  believed  that  they  have  adopted 
the  rule  of  refusing  to  deliver  up 
their  citizens.  But,  in  order  to  de- 
termine the  force  and  effect  of  this 
rule  from  the  point  of  view  of  inter- 
national law,  it  is  necessary  to  in- 
quire how  it  has  been  secured  and 
enforced.  Where  no  treaty  exists,  the 
subject  is  simple.  It  is  generally 
agreed  that,  in  the  absence  of  a  con- 
vention extradition  is  a  matter  of 
comity,  and  not  of  positive  obliga- 
tion. In  such  case,  each  nation  is 
free  to  regulate  its  conduct  according 
to  its  owft  discretion.  If  it  declines 
to  surrender  its  citizens,  its  action, 
though  detrimental  to  the  interests  of 
justice,  does  not  afford  ground  for 
Complaint  or  pressure,  since  it  is 
acting  within  its  right.  But,  where 
the  subject  is  regulated  by  treaty, 
the  case  is  different.  What  before 
was  a  matter  of  comity  and  discre- 
tion, becomes  a  matter  of  duty,  and 
the  measure  of  that  duty  is  the  treaty. 
It  is  not  strange,  therefore,  that,  in 
order  to  avoid  the  obligation  to  ex- 
tradite their  citizen,  the  states  of 
Europe  have  industriously  inserted  in 
their  treaties  an  express  stipulation 


to  exempt  themselves  from  that  ob- 
ligation. With  respect  to  those  who 
are  to  be  surrendered,  they  usually 
employ,  as  is  done  in  the  treaty  be- 
tween the  United  States  and  ,  Italy, 
the  general  term  'persons.'  Having 
used  this  term,  they  then  proceed  to 
insert  a  clause  to  except  their  citi- 
zens from  the  general  obligation;  and 
it  is  by  means  of  this  clause,  and 
not  by  reason  of  an  implication  cre- 
ated by  international  law,  that  the 
duty  of  surrender  is  avoided. 

"More  cogent  proof  of  this  fact 
could  not  be  found  than  is  afforded 
by  the  extradition  treaties  of  the 
United  States  with  European  nations, 
to  which  you  refer  for  the  purpose 
of  showing  that  this  Government  has 
recognized  the  exemption  of  citizens 
by  international  law.  Among  those 
treaties  is  that  with  Prussia  and  other 
German  states,  concluded  June  16, 
1852,  which  is  the  first  in  which  the 
United  States  admitted  an  exception 
of  citizens.  It  is  a  part  of  the  pub- 
lic history  of  extradition  that  for 
years  the  Government  of  the  United 
States  refused  to  negotiate  treaties 
for  the  surrender  of  fugitives  from 
justice  with  several  of  the  states  of 
Europe,  because,  owing  to  the  limita- 
tions of  their  domestic  laws,  they  in- 
sisted upon  the  insertion  of  a  clause 
to  exempt  their  citizens.  It  was  for 
this  reason  alone  that  this  Govern- 
ment, in  order  to  avoid  the  misfor- 
tune of  a  total  lack  of  extradition, 
finally  admitted  the  exception.  Ac- 
cordingly, we  find  in  the  preamble 
to  the  treaty  with  Prussia  and  other 
German  states,  the  following  recital: 
'Whereas  it  is  found  expedient  for 
the  better  administration  of  justice 


§  325] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


366 


own  citizens  or  subjects,  but  to  this  proposal  Mr.  Gresham,  Sec- 
retary of  State,  replied:  "The  President  is  unwilling  to  enter  into 
any  treaty  of  extradition  which  will  exclude  citizens  or  subjects 


and  the  prevention  of  crime  within 
the  territories  and  jurisdiction  of  the 
parties  respectively  that  persons  com- 
mitting certain  heinous  crimes,  being 
fugitives  from  justice,  should,  under 
certain  circumstances,  be  reciprocally 
delivered  up,  and  also  to  enumerate 
such  crimes  explicitly;  and  whereas 
the  laws  and  constitution  of  Prussia, 
and  of  the  other  German  states,  par- 
ties to  the  convention,  forbid  them 
to  surrender  their  own  citizens  to  a 
foreign  jurisdiction,  the  Government 
of  the  United  States,  with  a  view  of 
making  the  convention  strictly  recip- 
rocal, shall  be  held  equally  free  from 
any  obligation  to  surrender  citizens 
of  the  United  States:  Therefore,  etc.' 

"This  recital,  it  is  to  be  observed, 
was  not  a  declaration  by  the  United 
States  alone,  but  by  both  parties,  of 
the  reason  for  the  exclusion  of  citi- 
zens. The  same  declaration  is  found 
in  the  treaty  with  Bavaria  of  1853, 
with  Austria-Hungary  of  1857,  with 
Baden  of  1857,  and  with  various 
German  states  by  virtue  of  their 
accession  to  the  treaty  with  Prussia, 
which  was,  in  1868,  finally  extended 
to  the  whole  of  the  north  German 
Confederation. 

"In  the  record  of  the  negotiation 
of  the  treaty  with  Italy  no  reference 
is  found  to  the  subject  of  citizens. 
What  may  have  been  said  in  the  oral 
discussions  cannot  now  be  discovered. 
It  is,  however,  a  matter  of  record  in 
this  Department  that  in  the  same 
year,  1868,  Mr.  Seward,  who,  as  Sec- 
retary of  State,  signed  the  treaty  on 
the  part  of  the  United  States,  re- 
fused to  conclude  a  convention  with 
Belgium  because  she  insisted  upon  the 
exception  of  her  citizens.  In  this  re- 


lation I  may  advert  to  another  fact 
which  possesses  great  significance. 
The  treaty  of  extradition  concluded 
between  the  United  States  and  Italy 
in  1868  was  one  of  two  treaties  con- 
cluded between  those  countries  in  that 
year,  the  other  relating  to  the  rights 
and  privileges  of  consuls.  These 
treaties  were  designed  to  take  the 
place  of  the  treaties  formerly  made 
between  the  United  States  and  the 
independent  states  of  Sardinia  and 
the  Two  Sicilies.  In  the  treaty  with 
the  latter  Government  of  1855,  there 
were  stipulations  relating  to  extradi- 
tion, and  among  them  was  the  follow- 
ing provision :  l  The  citizens  and  sub- 
jects of  each  of  the  high  contracting 
parties  shall  remain  exempt  from  the 
stipulations  of  the  preceding  articles, 
as  far  as  they  relate  to  the  sur- 
render of  fugitive  criminals.'  (Arti- 
cle XXIV.) 

' '  In  view  of.  the  existence  of  this 
clause  in  the  treaty  with  the  Two  Sici- 
lies, it  can  scarcely  be  supposed  that 
the  parties  to  the  substitutionary  ar- 
rangement of  1868,  negotiated  that 
instrument  in  oblivion  of*  the  ques- 
tion as  to  citizens.  And  when  we 
consider  the  omission  of  the  clause, 
especially  in  conjunction  with  Mr. 
Seward 's  refusal  to  negotiate  with 
Belgium,  the  inference  seems  to  be 
morally  irresistible  that  the  obliga- 
tion to  deliver  up  their  citizens,  un- 
der the  treaty  of  1868,  was  fully  un- 
derstood by  the  contracting  parties 
at  the  time  of  its  conclusion. 

"From  what  has  been  stated  I  am 
forced  to  conclude,  not  only  that  inter- 
national law  does  not  except  citizens 
from  surrender,  but  also  that  it  has 
been  well  understood,  especially  in 


367 


POSITION  OF  THE  UNITED   STATES. 


[§  325 


of  either  country  from  its  operations.  No  good  reason  is  per- 
ceived why  citizens  of  the  United  States  who  commit  crimes  in 
Italy,  or  Italian  subjects  who  commit  crimes  in  the  United  States, 


dealing  with  the  United  States,  that 
the  term  ' persons'  includes  citizens 
and  requires  their  extradition,  unless 
they  are  expressly  exempted. 

' '  Nor  am  I  able  to  find  sufficient 
ground  for  the  refusal  to  surrender 
citizens  in  the  general  principles  on 
which  extradition  is  conducted.  It 
does  not  satisfy  the  ends  of  justice  to 
say  that,  although  a  nation  does  not 
extradite  its  citizens,  it  undertakes  to 
try  and  punish  them.  This  argument 
may  be  admitted  to  have  great  force 
where,  by  reason  of  the  absence  of 
any  conventional  assurance  of  reciproc- 
ity, a  nation  declines  a  demand  ad- 
dressed to  its  discretion.  But  the 
chief  object  of  extradition  is  to  se- 
cure the  punishment  of  crime  at  the 
place  where  it  was  committed,  in  ac- 
cordance with  the  law  which  was  then 
and  there  of  paramount  obligation. 
It  is  for  this  purpose  that  extradi- 
tion treaties  are  made,  and,  except  in 
so  far  as  their  stipulations  may  pre- 
vent the  realization  of  that  design, 
they  are  to  be  executed  so  as  to  give 
it  full  effect.  It  is  at  the  place 
where  the  offense  was  committed  that 
it  can  most  efficiently  and  most  cer- 
tainly be  prosecuted.  It  is  there  that 
the  greatest  interest  is  felt  in  its 
punishment  and  the  moral  effect 
of  retribution  most  needed.  There, 
also,  the  accused  has  the  best  oppor- 
tunity for  defense,  in  being  con- 
fronted with  the  witnesses  against 
him;  in  enjoying  the  privilege  of 
cross-examining  them;  and  in  exer- 
cising the  right  to  call  his  own  wit- 
nesses to  give  their  testimony  in  the 
presence  of  his  judges.  These  and 
other  weighty  considerations,  which 
it  is  not  necessary  to  state,  have  led 


what  I  am  inclined  to  regard  as  the 
great  preponderance  of  authorities  on 
international  law  at  the  present  day 
to  condemn  the  exception  of  citizens 
from  the  operation  of  treaties  of  ex- 
tradition. In  France  I  need  only  to 
refer  to  such  well-known  writers  on 
extradition  as  Billot  and  Bernard. 
In  Italy  I  may  refer  again  to  the 
eminent  publicist  Fiore,  who  says 
that,  in  spite  of  all  that  has  been 
said  on  the  subject,  his  opinion  is  that, 
while  in  former  times  the  absolute 
prohibition  against  the  surrender  of 
citizens  had  some  reason  for  its  ex- 
istence, it  is  insisted  upon  to-day 
rather  as  one  of  numerous  conven- 
tional aphorisms,  accepted  without 
searching  discussion  for  fear  of  show- 
ing too  little  regard  for  national  dig- 
nity (Traite  de  Droit  Penal  Int.,  sec- 
tion 362).  I  will  not  extend  the 
length  of  this  note  by  citing  other 
books,  but,  as  showing  the  general 
view  of  eminent  publicists,  will  refer 
to  two  resolutions  of  the  Institute  of 
International  Law,  adopted  at  the 
session  at  Oxford  in  1881-82.  Those 
resolutions  are  as  follows: 

"  'VI.  Between  countries  whose 
criminal  legislation,  rests  on  like  bases, 
and  which  should  have  mutual  confi- 
dence in  their  judicial  institutions, 
the  extradition  of  citizens  would  be 
a  means  to  assure  the  good  adminis- 
tration of  penal  justice,  since  it  ought 
to  be  regarded  as  desirable  that  the 
jurisdiction  of  the  forum  delicti  com- 
misi  should,  so  far  as  possible,  be 
called  upon  to  judge. 

'"VII.  Admitting  it  to  be  the 
practice  to  withdraw  citizens  from 
extradition,  account  ought  not  to  be 
taken  of  a  nationality  acquired  only 


§    325]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  368 

should  not,  if  they  take  refuge  in  their  own  country,  be  delivered 
up  by  its  authorities  to  the  country  whose  laws  they  have  violated. 
A  refusal  to  surrender  them  would  result,  in  the  case  of  Ameri- 
cans committing  crime  in  Italy,  in  an  utter  failure  of  justice ;  and 
though  Italy  may  undertake  to  punish  her  subjects  who,  after 
committing  crime  here,  return  within  her  jurisdiction,  yet  the 
means  of  ascertaining  the  truth  and  doing  justice  must,  under 
such  conditions,  always  be  difficult  and  often  unattainable."90 

It  was  decided  by  the  courts  oi:  Switzerland  that  under  the 
terms  of  the  treaty  between  that  country  and  the  United  States,  a 
person  charged  with  the  commission  of  embezzlement  in  the 
United  States,  and  who  resisted  extradition  on  the  ground  that 
he  was  a  citizen  of  Switzerland  and  not  subject  to  surrender, 
should,  nevertheless,  be  delivered  up.  The  treaty  of  1850  be- 
tween these  two  countries  provided  for  the  surrender  of  persons 
charged  with  crime,  and  had  no  stipulation  exempting  the  citi- 
zens of  the  contracting  parties  from  surrender.  The  stipulation 
was  made  in  general  terms,  and  no  distinction  was  made  between 
strangers  and  citizens.91 

In  1893  the  United  States  refused  to  surrender  a  person  who 
had  been  committed  for  extradition  to  Mexico,  under  the  terms 
of  a  treaty  providing  that  the  contracting  parties  should  not  be 

after  the  perpetration  of  the  act  for  require  either  the  denunciation  of  that 

which       extradition       is       demanded.  treaty     or     the     conclusion    of     new 

(Annuaire,  v.  1881-82,  pp.  127,  128.)  '  stipulations  upon  which  the  contract- 

' '  At  the  session  at  which  these  ing  parties  will  find  themselves  in 
resolutions  were  adopted  seventeen  agreement.  If,  as  a  part  of  those 
members  and  eight  associates  of  the  stipulations,  citizens  should  be  ex- 
institute  were  present,  including  some  cepted,  it  would  be  essential  to  reach 
of  the  most  eminent  publicists  in  Eu-  an  understanding  as  to  the  effect  of 
rope,  and  representing  Italy,  Ger-  naturalization.  These  matters  it  is 
many,  Austria,  Belgium,  Spain,  not  my  purpose  to  discuss  on  the 
France,  Great  Britain,  Greece,  Kussia,  present  occasion,  but  I  deem  it  my 
and  Sweden.  duty  to  suggest  them  for  considera- 

' '  In  view  of  what  has  been  shown,  tion. ' '     Mr.      Blaine,      Secretary     of 

I  am  unable  to  discover  any  ground  State,  to  Baron  Fava,  Ital.  Min.,  June 

of  reconciliation  of  the  totally  oppo-  23,   1890,   For.  Eel.   1890,  559. 

site  views  entertained  by  the  United  ao  For.  Eel.  1894,  361,  364;  4  Moore 

States  and  Italy  in  regard  to  the  force  Ent.  L.  Dig.  297. 

and  effect  of  the  treaty  of  1868,  un-  91  Mr.      Washburne,      Minister      to 

less  'the  Government  of  Italy  will  re-  Switzerland,  to  Mr.  Blaine,  Secretary 

consider     its     position.     The     present  of  State,  No.  50,  March  23,  1891,  28 

situation,   therefore,  seems   to  me    to  MS.    Desp.    from    Switzerland. 


369  UNDER  THE  MEXICAN  LAW.  [§    326 

bound  to  deliver  up  their  own  citizens.  This  action  was  placed 
on  the  ground  that  it  appeared  from  the  evidence  that  he  was  a 
citizen  of  the  United  States.92 

§  326.  Under  the  Mexican  law. — Under  the  Mexican  law  a 
foreigner  acquiring  real  estate  becomes  a  citizen,  and  on  this 
ground  the  Mexican  government,  in  1895,  refused  to  surrender  to 
the  United  States  a  fugitive  from  justice  who  had  purchased 
real  estate  in  Mexico.93  The  treaty  of  1899  between  the  United 
States  and  Mexico,  while  providing  that  neither  party  shall  be 
bound  to  deliver  up  its  own  citizens,  also  contains  a  stipulation 
that  ''the  executive  authority  of  each  shall  have  the  power  to 
deliver  them  up,  if,  in  its  discretion,  it  be  deemed  proper  to  do 
so."  In  that  year  a  woman  charged  with  the  murder  of  her 
husband  in  Mexico,  although  both  were  American  citizens,  was 
delivered  up.94  In  1884  the  United  States  declined  to  surrender 
Alexander  Trimble,  an  American  citizen,  to  Mexico,  on  charges 
of  robbery  and  murder,  basing  its  refusal  on  the  ground  that  the 
President  was  not  authorized  to  act,  as  the  treaty  negatived  any 
obligation  of  this  character.95  In  1878  certain  Mexicans  who  had 
taken  part  in  an  assault  on  a  jail  in  Texas  were  ordered  surren- 
dered, but  before  the  order  was  carried  into  effect  the  governor 
of  Texas  made  the  issuance  of  the  order  the  foundation  of  a  de- 
mand for  the  extradition  of  other  Mexicans  as  a  matter  of 
right,  and  on  this  ground  the  order  was  withdrawn.96  In  1878 
Mexico  signified  its  willingness  to  grant  the  extradition  of  its 
citizens  if  it  could  receive  a  formal  assurance  of  reciprocity. 
Mr.  Evarts  stated  that  he  did  not  deem  himself  clothed  with  au- 
thority to  give  such  a  general  pledge,  and  added:  "Cases,  how- 
ever, may,  and  probably  will,  occur  in  which  the  President  would 
not  hesitate  to  exercise  in  due  form  whatever  discretion  in  such 
matters  might  rest  with  him,  were  adequate  provisions  made  by 

92  Mr.  Gresham,  Secretary  of  State,       Minister   of   Foreign   Affairs,   to   Mr. 
to     Mr.     Romero,     Mexican   Minister,       Butler,  Charge ,  January  23,  1896,  For. 
May  13,   1893,  Notes  to  Mexico,  IX,       Rel.  1895,  II,  1010. 

664.  94  For.  Rel.  1899,  497-501. 

93  4  Moore   Int.   L.   Dig.   303;    Mr.  95    Report  of  Mr.  Frelinghuysen,  in 
Olney,    Secretary    of    State,    Minister  Sen.  Ex.  Doc.  98,  48th  Congress,  1st 
to   Mexico,   December    13,   1895,   For.  Session. 

Rel.    1895,    II,    1008;    Mr.    Mariscal,  96  For.  Rel.  1878,  534,  539,  540. 

Treaties — 24 


§§    327,    328]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  370 

Congress  to  that  end.  In  the  absence  of  any  provisions  of  law 
for  the  extradition  of  criminals  in  cases  not  covered  by  treaty 
obligations,  it  is  very  apparent  that  this  government  must  re- 
serve the  right  to  decide  upon  its  own  circumstances  each  case 
which  may  be  brought  to  its  notice  by  your  government. ' ' 97 

§  327.  Citizen  of  another  country. — But  while  under  a  treaty 
American  citizens  may  not  be  surrendered,  this  principle  does  not 
apply  to  the  citizens  of  another  country  found  within  the  limits 
of  the  United  States.  The  correct  view  was  expressed  by  Mr. 
Marcy:  "If  a  Mexican  citizen  should  commit  a  crime  in  England 
and  flee  to  the  United  States,  there  is  no  doubt  in  my  mind  that 
this  government  would  have  a  right  to  surrender  him  as  a  fugi- 
tive on  a  requisition  under  our  treaty  of  extradition  with  her. ' ' 98 
Hence  it  is  not  necessary  that  a  foreign  government  should  prove 
that  the  person  whose  extradition  is  sought  is  one  of  its  citizens, 
"for  its  right  to  demand  extradition  is  not  limited  to  the  case 
of  its  own  citizens,  but  extends  to  all  cases,  save  that  of  Ameri- 
can citizenship/'99 

§  328.  Political  offenses. — Extradition  will  not  be  granted  for 
political  offenses.  It  may  be  difficult,  however,  in  many  in- 
stances, to  determine  whether  an  offense  is  political  within  the 
sense  of  the  term  as  used.  On  an  application  for  extradition  it 
is  only  necessary  to  show  probable  cause.  As  said  by  Chief  Jus- 
tice Marshall:  "I  certainly  should  not  require  that  proof  which 
would  be  necessary  to  convict  the  person  to  be  committed,  on  a 
trial  in  chief,  nor  should  I  even  require  that  which  should  abso- 
lutely convince  my  own  mind  of  the  guilt  of  the  accused.  But 
I  ought  to  require,  and  I  should  require  that  probable  cause  be 
shown,  and  I  understand  probable  cause  to  be  a  case  made  out 
by  proof,  furnishing  good  reason  to  believe  that  the  crime  alleged 
has  been  committed  by  the  person  charged  with  having  com- 

97  1    Moore    on    Extradition,    166.       54,    October    22,    1855,    MS.    Mexico, 
Other  instances  may  be  found  cited       XVII,  54. 

in  1  Moore  on  Extradition,  166,  show-  "  Mr.  Gresham,  Secretary  of  State, 

ing  the  application  of  this  principle.  to    the    Attorney   General,    May     22, 

98  Mr.  Marcy,  Secretary  of  State,  to  1893,  192  MS.  Dom.  Let.  82. 
Mr.  Gadsen,  Minister  to  Mexico,  No. 


371  FINAL   DECISION    AS   TO    QUESTION.  [§§    329,    330 

mitted  it. ' '  10°     It  is  the  duty  of  a  committing  magistrate  to  de- 
termine whether  the  offense  alleged  is  of  a  political  nature.101 

§  329.  Final  decision  as  to  question. — As  different  views  pre- 
vail as  to  what  acts  constitute  a  political  offense,  the  final  de- 
cision must  rest  with  the  government  in  which  the  fugitive  has 
found  refuge.102  The  United  States  cannot  consent  that  a  Ger- 
man city  shall  surrender  to  a  German  state,  on  the  ground  of 
dereliction  in  military  service,  a  citizen  of  the  United  States 
who  is  temporarily  residing  in  such  city.103 

Under  the  law  of  the  state  of  New  York  authorizing  the  gov- 
ernor to  surrender  to  foreign  government  any  person  found  with- 
in the  state  charged  with  the  commission  of  any  crime  that,  if 
committed  in  New  York,  would  be  punishable  with  death  or  im- 
prisonment in  the  state  prison,  the  governor  of  New  York,  in 
1822,  refused  to  surrender  a  person  charged  with  murder,  arson 
and  robbery,  where  it  appeared  that  the  acts  constituting  the  of- 
fense were  committed  by  a  band  of  from  six  hundred  to  fifteen 
hundred  persons,  who  had  armed  themselves  and  had  commenced 
an  insurrection  for  the  redress  of  alleged  grievances.104 

§  330.  Some  instances. — During  the  progress  of  the  Civil 
War,  in  1863,  an  American  vessel  loaded  with  cotton,  en  route 
from  Mexico  to  New  York,  was  seized  by  passengers  on  board 
in  the  name  of  the  Confederate  government.  Four  of  the  of- 
fenders were  arrested  in  Liverpool,  their  extradition  having  been 
requested  on  a  charge  of  piracy.  The  case  was  finally  decided 
on  the  ground  that  even  if  the  acts  constituted  piracy,  it  was  not 
such  piracy  as  the  treaties  had  in  view,  which  the  court  con- 
sidered to  be  piracy  under  municipal  statutes.105 

In  1864  one  Burley,  who  professed  to  act  on  behalf  of  the  Con- 
federate government,  seized  an  American  boat,  in  American  wa- 
ters, not  far  from  the  shore  of  the  state  of  Ohio.  Burley  was 
brought  to  Toronto,  Canada,  and  his  extradition  was  demanded 
on  the  charges  of  piracy,  robbery  and  assault  with  attempt  to 

100  1  Burr's  Trial,  11.  Mr.    Schleiden,     April     9,    1859,    MS. 

101  In  re  Ezeta,  62  Fed.  972.  Notes  to  Hanse  Towns,  VII,  31. 

302  Lord  Derby  to  Colonel  Hoffman,  104  MS.    Misc.    Let.,    December    30, 

May  4,  1876,  For.  Eel.  1876.  1837. 

103  Mr.  Cass,  Secretary  of  State,  to  10<s  In  re  Tivnam,  5  Best  &  S.  645. 


§    331]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  372 

commit  murder.  He  was  remanded  to  Ohio  for  trial,  the  judges 
of  Canada  taking  the  ground  that  a  prima  facie  case  of  robbery 
was  clearly  established.106  But  in  1864  certain  persons  who  or- 
ganized an  expedition  in  Canada  came  to  the  town  of  St.  Albans, 
in  Vermont,  and  raided  that  town,  committing  many  acts  of  vio- 
lence. It  appeared  that  the  leader  had  a  commission  under  the 
Confederate  states,  and  he  claimed  that  in  making  the  raid  he 
was  acting  as  an  officer,  and  that  his  companions  were  soldiers 
acting  under  his  authority  and  command.  It  was  held  by  the 
Canadian  authorities  that  the  attack  was  a  hostile  expedition, 
authorized  both  expressly  and  impliedly  by  the  Confederate 
states.107 

§  331.  Raid  at  San  Ignacio. — Three  Mexicans,  named  Inez 
Ruiz,  Juan  Duque  and  Jesus  Guerra,  were  a  part  oi!  an  armed 
band  who,  crossing  the  Bio  Grande  from  Texas  to  Mexico,  De- 
cember 10,  1892,  attacked  a  garrison  of  soldiers  stationed  at  the 
village  of  San  Ignacio.  This  band  wounded  and  killed  some  of 
the  soldiers  and  captured  others,  whom  they  subsequently  released. 
The  band  likewise  burned  the  barracks  of  the  soldiers  and  took 
away  their  horses  and  equipments,  assaulted  private  citizens, 
burned  houses  in  the  village,  extorted  money  from  the  inhabit- 
ants, and  appropriated  clothes  and  provisions.  The  raiders 
kidnaped  three  citizens  and  carried  them  over  the  boundary 
into  Texas,  although  they  afterward  escaped.  A  revolutionary 
movement  took  place  in  Mexico  under  Garza  in  1891,  but  Garza 
was  not  present  at  the  time  of  the  depredations  and  had  no  con- 
nections with  the  raiders,  who  displayed  no  uniform  or  flag,  and 
whose  only  emblem  indicating  their  identity  was  a  red  band 
around  their  hats.  The  Mexican  Minister  requested  the  ex- 
tradition of  the  three  Mexicans  on  charges  of  murder,  arson,  rob- 
bery and  kidnaping  committed  in  Mexico.  The  examining  magis- 
trate committed  the  prisoners  for  surrender,  but  they  applied  to 
the  district  court  for  release  on  habeas  corpus,  and  that  court 
held  that  the  offense  was  of  a  political  character,  and  ordered 

108  Dip.    Cor.    1864,    part   II.  mitting  magistrate,  examined  into  the 

IOT  rpne  g^  Albans  Eaid,  by  L.  N.  charges  preferred  against  certain  citi- 

Benjamin,  B.   C.  L.,  Montreal,   1865.  zens  of  Salvador,  and  held  that  sev- 

In  re  Ezeta,  62  Fed.  972,  Judge  Mor-  eral  of  the  offenses  were  political  in 

row,  District  Judge,  sitting  as  a    com-  character. 


373  P1LCOMAYO  MUTINEERS.  [§    332 

the  prisoners  discharged.  An  appeal  was  taken  to  the  supreme 
court  of  the  United  States,  which  held  that  the  judgment  of  the 
magistrate  rendered  in  good  faith  on  legal  evidence,  to  the  ef- 
fect that  the  accused  was  guilty  of  the  act  with  which  he  was 
charged,  and  that  the  offense  constituted  an  extraditable  crime, 
is  not  reviewable  on  the  weight  of  the  evidence.  Unless  the  judg- 
ment is  palpably  erroneous  in  law,  it  is  final  for  the  purposes  of 
the  preliminary  examination.108 

§  332.  Pilcomayo  mutineers. — A  mutiny  took  place  on  the 
Chilean  gunboat,  "Pilcomayo,"  March  31,  1891,  while  she  was 
lying  in  the  docks  at  Buenos  Ayres,  which  resulted  in  the  wound- 
ing of  eleven  of  the  crew  and  the  death  of  three.  The  local  po- 
lice, at  the  instance  of  the  commander,  took  twelve  of  the  mu- 
tineers into  custody,  and  the  Chilean  Minister  requested  their 
detention  until  the  vessel  was  ready  to  depart  for  Chile,  so  that 
they  might  be  transported  to  that  country  and  tried  for  their 
offense.  The  Chilean  government  had  ordered  the  dismantling 
of  the  "Pilcomayo,"  and  this  task  was  being  performed  at  the 
time  of  the  mutiny.  It  was  understood  that  upon  the  comple- 
tion of  this  task,  the  vessel  was  to  be  taken  back  to  Chile  and  put 

10S  Ornelas  v.  Euiz,  161  U.  S.  502,  concerned  with  the  question  of  the 
16  Sup.  Ct.  Eep.  689,  40  L.  ed.  787.  actual  criminality  of  petitioners  if  the 
Said  the  court :  ' '  Can  it  be  said  that  commissioner  had  probable  cause  for 
the  commissioner  had  no  choice  on  his  action.  It  is  enough  if  it  appear 
the  evidence,  but  to  hold,  in  view  of  that  there  was  legal  evidence  on 
the  character  of  the  foray,  the  mode  which  the  commissioner  might  prop- 
of  attack,  the  persons  killed  or  cap-  erly  conclude  that  the  accused  had 
tured,  and  the  kind  of  property  committed  offenses  within  the  treaty 
taken  or  destroyed,  that  this  was  a  as  charged,  and  so  be  justified  in  ex- 
movement  in  aid  of  a  political  revolt,  ercising  his  power  to  commit  them  to 
an  insurrection  or  a  civil  war,  and  await  the  action  of  the  executive  de- 
that  acts  which  contained  all  the  char-  partment. ' ' 

acteristics  of  crimes  under  the  ordin-  A    writ    of    habeas    corpus    cannot 

ary  law  were  exempt  from  extradition  perform  the  office  of  a  writ  of  error, 

because  of  the  political  intentions  of  Oteiza  y  Cortes  v.  Jacobus,  136  TJ.  S. 

those   who   committed  them?     In   our  330,  10  Sup.  Ct.  Eep.  1031,  34  L.  ed. 

opinion  the  inquiry  must  be  answered  •  464;   Benson  v.  McMahon,   127  U.   S. 

in  the  negative.     The  contention  that  457,  8  Sup.  Ct.  Eep.  1240,  32  L.  ed. 

the   right   of   the   executive   authority  234;  Fong  \ue  Ting  v.  United  States, 

to    determine    what    offenses    charged  149  U.  S.  714,  13  Sup.  Ct.  Eep.  1016, 

are  or  are  not  purely  political  is  not,  37  L.  ed.  913. 
involved  in   any   degree;    nor   are  we 


§    333]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  374 

out  of  service,  and  that  a  part  of  the  crew  was  to  be  taken  over- 
land and  enlisted  in  the  army.  A  judge  of  the  Argentine  Re- 
public granted  a  writ  of  habeas  corpus  to  the  mutineers,  and  de- 
cided on  the  hearing  that  the  exemption  of  ships  of  war  from  the 
jurisdiction  of  the  local  authorities  could  not  extend  to  the 
length  of  bestowing  authority  to  entertain  jurisdiction  over  per- 
sons in  foreign  territory  under  its  flag.  The  court  decided,  also, 
that  by  causing  the  men  to  be  taken  from  the  vessel  and  placed 
in  the  custody  of  the  Argentine  officials,  the  Chilean  Minister 
had  renounced  or  lost  the  right  to  remove  and  try  them,  a  right 
which  he  might  have  exercised  had  they  been  retained  on  board 
of  the  vessel  or  held  under  arrest  in  the  Chilean  legation.  It 
was  intimated  by  the  court  that  as  the  vessel  had  lost  its  charac- 
ter as  a  ship  of  war  by  dismantlement,  it  was  improper  to  detain 
the  mutineers  as  a  part  of  the  crew  of  a  man-of-war.  An  appeal 
was  taken  from  this  decision  to  the  supreme  court  of  the  Argen- 
tine Republic,  which  held  that  as  the  mutiny  appeared  to  be  for 
political  reasons,  the  offense  was  to  be  considered  a  political  one ; 
and  that  as  the  taking  of  the  mutineers  to  shore  and  their  de- 
livery to  the  Argentine  authorities  were  caused  by  the  inability 
of  retaining  them  on  board  of  the  vessel,  it  was  impossible  to 
grant  their  return  to  the  representative  of  Chile,  without  violat- 
ing the  rule  exempting  political  offenders  from  extradition.  The 
supreme  court  of  that  nation  also  held  that  by  their  delivery,  the 
principle  of  public  law  which  protects  prisoners  of  war,  whether 
public  or  insurrectionary,  would  be  violated.  It  is  a  rule  of  in- 
ternational law,  held  the  court,  that  by  the  commission  of  acts 
of  hostility  by  foreign  insurgents  in  the  territorial  waters  of  an- 
other state,  delivery  may  be  made  of  the  vessels  or  things  taken 
from  them,  but  they  themselves  are  not  to  be  surrendered.109 

§  333.  Exemption  from  local  jurisdiction.— There  is  a  class  of 
cases  in  which  it  is  understood  that  every  sovereign  waives  a 
part  of  the  complete  exclusive  jurisdiction  which  is  an  incident 
to  sovereignty.  A  public  vessel  of  war  of  a  foreign  nation  at 

109  Mr.   Buchanan,   Minister   to   the  Francois  S.  Jones,  Secretary  of  Lega- 

Argentine  Kepublic,  to  Mr.  Hay,  Sec-  tion,    citing    Fallos    cle    la    Suprema 

retary  of  State,  No.  584,  December  1,  Corte  de  la  Eepublica  Argentina,  1893, 

1898,  37   MS.   Desp.   from  Argentine  XLIII,  321,  323. 
Eepublic,   inclosing   a    report   of   Mr. 


375  EXEMPTION  FROM  LOCAL  JURISDICTION.  [§    333 

peace  with  the  United  States,  coming  into  an  American  port  and 
committing  no  breach  of  the  laws,  is  exempt  from  the  jurisdiction 
of  the  courts.110  A  libel  was  filed  against  the  schooner  "Ex- 
change," alleging  that  the  libelants  were  her  sole  owners  when 
she  sailed  from  Baltimore  bound  to  St.  Sebastians,  in  Spain,  and 
that  while  lawfully  and  peaceably  pursuing  her  voyage,  she  was 
violently  and  forcibly  taken  by  certain  persons,  acting  under  the 
orders  of  Napoleon,  out  of  the  custody  of  the  libelants,  and  dis- 
posed of  in  violation  of  their  rights.  It  was  alleged  that  the 
vessel  had  been  brought  into  the  port  of  Philadelphia;  that  no 
sentence  or  decree  of  condemnation  had  been  pronounced 
against  her  by  any  court  of  competent  jurisdiction,  but  that  the 
property  of  the  libelants  in  her  remained  unchanged  and  in  full 
force.  The  United  States  attorney  filed  a  suggestion  to  the  ef- 
fect that  the  vessel  whose  name  had  been  changed  belonged  to 
the  Emperor  of  France,  and  that  while  actually  employed  in 
his  service,  was  compelled  by  stress  of  weather  to  seek  the  port 
of  Philadephia  for  repairs;  and  that  if  the  vessel  was  ever  the 
property  of  the  libelants,  their  title  had  been  devested  according 
to  the  decrees  and  laws  of  France.  Upon  the  ground  that  a  pub- 
lic armed  vessel  of  a  foreign  sovereign  in  amity  with  the  United 
States  is  not  subject  to  the  ordinary  judicial  tribunals  of  the 
country,  so  far  as  the  question  of  title  by  which  such  sovereign 
holds  the  vessel  is  concerned,  the  circuit  court,  reversing  the  sen- 
tence of  the  district  court,  ordered  the  vessel  to  be  restored  to 
the  litigants.  On  an  appeal  to  the  supreme  court  of  the  United 
States,  Mr.  Chief  Justice  Marshall,  in  delivering  the  opinion  of 
the  court  said:  "The  jurisdiction  of  the  nation  within  its  own 
territory  is  necessarily  exclusive  and  absolute.  It  is  susceptible 
of  no  limitation  not  imposed  by  itself.  Any  restriction  upon  it, 
deriving  validity  from  an  external  source,  would  imply  a  diminu- 
tion of  its  sovereignty  to  the  extent  of  the  restriction,  and  an 
investment  of  that  sovereignty  to  the  same  extent  in  that  power 
which  could  impose  such  restriction The  world  being  com- 
posed of  distinct  sovereignties,  possessing  equal  rights  and  equal 
independence,  whose  mutual  benefit  is  promoted  by  intercourse 
with  each  other,  and  by  an  interchange  of  those  offices  which 
mumanity  dictates  and  its  wants  require,  all  sovereigns  have  con- 
sented to  a  relaxation  in  practice,  in  cases  under  certain  peculiar 

110  The   Schooner   Exchange    v.  McFaddon,  7  Cranch,  116,  3  L.  ed.  287. 


§    334]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  376 

circumstances,  of  that  absolute  and  complete  jurisdiction  within 
their  respective  territories  which  sovereignty  confers.  This  con- 
sent may,  in  some  instances,  be  tested  by  common  usage  and  by 
common  opinion  growing  out  of  that  usage.  A  nation  would 
justly  be  considered  as  violating  its  faith,  although  that  faith 
might  not  be  expressly  plighted,  which  should  suddenly  and  with- 
out previous  notice  exercise  its  territorial  powers  in  a  manner 
not  consonant  to  the  usages  and  received  obligations  of  the  civil- 
ized world. "  m 

§  334.  Attempt  against  life  of  President  or  other  officers.— It 
is  now  provided  in  many  treaties  that  an  attempt  to  take  the  life 
of  the  head  of  a  nation  shall  not  be  considered  a  political  offense. 
In  the  treaties  concluded  in  1882  and  1883  between  the  United 
States  and  Belgium  and  Luxemburg,  a  clause  was  inserted  that  an 
attempt  against  the  head  of  the  government  or  against  any 
member  of  his  family  shall  not  be  considered  a  political  of- 
fense when  such  attempt  comprises  the  act  of  murder,  assassina- 
tion or  poisoning.  Similar  clauses  were  inserted  in  the  recent 
treaties  concluded  with  Russia  and  Denmark.112  The  extradition 
treaty  of  Brazil  of  1897  provides  that  an  attempt  against  the 
life  of  the  President  or  vice-president  of  the  United  States,  or  the 
governor  or  lieutenant-governor  of  any  state,  or  the  President  or 
vice-president  of  the  United  States  of  Brazil,  or  of  the  President  or 
vice-president  or  governor  of  any  of  its  states,  shall  not  be  con- 
sidered a  political  crime  when  it  is  unconnected  with  political 
movements. 

After  the  assassination  of  President  Lincoln  a  request  was  made 
to  several  governments  to  surrender  his  assassin,  should  he  be 
found  within  their  jurisdictional  limits,  and  in  all  cases  none 
but  a  ready  and  favorable  response  was  received.  John  H. 
Surratt,  charged  with  complicity  in  the  assassination,  was  ar- 
rested at  Alexandria  in  1866,  and  with  the  co-operation  of  the 
Egyptian  authorities  was  placed  on  board  of  an  American  man- 
of-war.113  While  under  the  treaty  with  Italy,  political  offenses 

111  The   Schooner   Exchange   v.   Me-  to  was  concluded  March  28,  1887,  and 
Faddon,  7  Cranch,  116,  3  L.  ed.  287.  the  ratifications  exchanged  April  21, 
See  Tucker  v.  Alexandroff,  183  U.  S.  1893.     The  treaty  with  Denmark  was 
424,  22  Sup.  Ct.  Eep.  195,  46  L.  ed.  concluded  January  6,  1902. 

264.  113  4    Moore    Int.    L.    Dig.    343;    1 

112  The  treaty  with  Eussia  referred      Moore  on  Extradition,  308. 


377  CASE   OF   ANARCHISTS.  [§§    335,    336 

are  not  extraditable,  the  Department  of  State  is  not  inclined  to 
consider  any  case  to  be  a  political  one  merely  because  the 
victim  is  the  head  of  the  government.114 

§  335.  Case  of  anarchists. — It  was  held  by  the  court  of 
queen's  bench  in  England,  in  1894,  that  to  constitute  an  offense 
of  a  political  character,  "there  must  be  two  or  more  parties  in 
the  state,  each  seeking  to  impose  the  government  of  their  own 
choice  on  the  other,"  and  that  the  offense  must  be  "committed 
by  one  side  or  the  other  in  pursuance  of  that  object."  Accord- 
ingly, anarchists,  notwithstanding  they  claim  that  they  are  actu- 
ated by  political  motives,  are  not  to  be  considered  political  of- 
fenders.115 

§  336.  Trial  for  different  offense. — It  is  now  a  settled  rule  in 
the  United  States  that  a  fugitive  who  has  been  extradited  from 
a  foreign  country  upon  a  specified  charge  can  be  tried  for  that 
offense  only  until  he  has  had  a  reasonable  time  and  opportunity 
after  his  release  or  trial  to  return  to  the  country  from  which  he 
was  taken.116 

Mr.  Justice  Miller,  after  reviewing  many  authorities,  summed 
up  by  saying:  "Upon  a  review  of  these  decisions  of  the  federal 
and  state  courts,  to  which  may  be  added  the  opinions  of  the  dis- 
tinguished writers  which  we  have  cited  in  the  earlier  part  of 
this  opinion,  we  feel  authorized  to  state  that  the  weight  of  au- 
thority and  of  sound  principle  are  in  favor  of  the  proposition 
that  a  person  who  has  been  brought  within  the  jurisdiction  of 
the  court  by  virtue  of  proceedings  under  an  extradition  treaty 

*14  Mr.    Hill,    Acting    Secretary    of  L.  ed.  425;  United  States  v.  Watts,  8 

State,  to  Baron  Fava,  Tel.  September  Saw.  (U.  S.)  370,  14  Fed.  130;  State 

12,  1900,  MS.  Notes  to  Ital.  Leg.,  IX,  v.   Vanderpool,    39   Ohio    St.   273,   48 

462.  Am.  Eep.  431;  Ex  parte  Coy,  32  Fed. 

115  In  re  Meunier,   2  Q.   B.    [1894]  911;     Commonwealth    v.     Hawes,     13 
415.     In    that    case    a    fugitive    from  Bush    (Ky.),  697,  26  Am.  Kep.   242; 
justice,  who  was   charged   with   caus-  Blandford  v.  State,  10  Tex.  App.  627; 
ing  the  explosion  at  the  Cafe  Very,  in  Ex  parte  Hibbs,  26  Fed.  421 ;  People 
Paris,    as    well    as    another    explosion  v.   Hannan,   9  Misc.  Rep.   600,  30  N. 
at    the   barracks    of   the    government,  Y.    Supp.    370;    People    v.    Stout,    81 
was  ordered  delivered  up.  Hun     (N.  Y.),  336,  30  N.  Y.  Supp. 

116  United   States   v.   Kauscher,   119  898. 
U.   S.  407,   7   Sup.   Ct.  Kep.   234,   30 


§    337]  TREATIES    OP    EXTRADITION    AND    PROCEEDINGS.  378 

can  only  be  tried  for  one  of  the  offenses  described  in  that  treaty, 
and  for  the  offense  with  which  he  is  charged  in  the  proceedings 
for  his  extradition,  until  a  reasonable  time  and  opportunity  have 
been  given  him  after  his  release  or  trial  upon  such  charge  to  re- 
turn to  the  country  from  whose  asylum  he  had  been  forcibly  taken 
under  those  proceedings. ' ' m  Thus,  a  fugitive  extradited  for 
larceny  cannot  be  extradited  for  forgery ; 118  nor  is  a  fugitive 
who  has  been  extradited  on  an  indictment  filed  in  a  state  court 
subject  to  arrest  by  a  federal  court.119  But  where  the  distinc- 
tion between  principals  and  accessories  has  been  abolished  by 
statute,  a  fugitive  extradited  as  an  accessory  may  be  tried  as  a 
principal.120  A  fugitive  who  is  captured  while  voluntarily  re- 
turning to  the  United  States  is  not  entitled  to  claim  the  benefit 
of  this  exemption.121 

§  337.  Pleading  other  offense. — Judge  Deady  said  that  the 
detention  of  a  person  for  a  charge  other  than  that  for  which  he 
had  been  surrendered  would  be  "not  only  an  infraction  of  the 
contract  between  the  parties  to  the  treaty,  but  also  a  violation  of 
the  supreme  law  of  this  land  in  a  matter  directly  involving  his 
personal  rights.  A  right  of  person  or  property  secured  or  rec- 
ognized by  treaty  may  be  set  up  as  a  defense  to  a  prosecution  in 
disregard  of  either  with  the  same  force  and  effect  as  if  such 
right  was  secured  by  an  act  of  Congress. ' ' 122 

In  Ohio  two  persons,  who  were  delivered  by  Canada  for  of- 
fenses specified  in  the  treaty,  were  for  such  offenses  convicted 
and  sentenced.  Subsequently  they  were  indicted  on  other 
charges,  and  they  pleaded  in  abatement  that  they  could  not  be 
placed  upon  their  trial  on  these  charges  until  after  the  lapse  of  a 

117  United   States   v.   Kauscher,    119  Fed.   206,   4   L.   E.   A.   236;    Hall  v. 
U.   S.  407,   7   Sup.   Ct.   Kep.   234,   30  Patterson,  45  Fed.  354;   In  re  Cross, 
L.   ed.   425.  43  Fed.  519;  Ex  parte  McKnight,  48 

118  In  re  Fitton,  45  Fed.  472.  Ohio   St.  594,   28  N.  E.  1034,  14  L. 

119  Cosgrove   v.   Winney,   174  U.   S.  B.  A.  130;  State  v.  Hall,  40  Kan.  341, 
68,  19  Sup.  Ct.  Eep.  598;   43  L.  ed.  10   Am.   St.   Eep.   202,   19   Pac.   920; 
897.  Moletor  v.   Sonnen,    76   Wis.   312,   20 

120  In  re  Eowe,  77  Fed.  165,  23  C.  Am.   St.  Eep.   74,  44  'N.  W.   1100,  7 
0.  A.  103,  40  U.  S.  App.  516;  State  v.  L.  E.  A.  818;  In  re  Eobinson,  29  Neb. 
Rowe,  104  Iowa,  327,  73  N.  W.  834.  138,  26  Am.  St.  Eep.  379,  45  N.  W. 

121  Ward   v.   State,   102    Tenn.   727,  268,  8  L.  E.  A.  309. 

52  S.  W.  997.     See,  also,  In  re  Bar-          122  In  Ex  parte  Hibbs,  26  Fed.  421 
uch,  41   Fed.  473;    In  re  Eeinitz,   39 


379  VARIANCES.  [§    338 

reasonable  time  after  the  expiration  of  their  sentences  for  the 
crimes  of  which  they  had  previously  been  convicted.  This  view 
was  sustained  by  the  supreme  court  of  Ohio.123 

§  338.  Variances. — A  person  whose  extradition  is  obtained  on 
a  charge  of  setting  fire  to  and  burning  a  brick  "house,"  alleged 
to  have  been  inhabited  as  a  retail  shoe  store,  may  be  indicted 
and  placed  on  trial  for  setting  fire  to  and  burning  a  store  "build- 
ing" occupied  as  a  store.124  So  in  a  case  where  a  fugitive  was 
extradited  from  Canada  on  a  charge  of  arson  committed  in  the 
state  of  Iowa,  and  the  information  which  constituted  the  founda- 
tion of  the  proceeding  alleged  that  the  arson  was  committed  by 
the  burning  of  a  "house,"  which  at  the  time  of  the  act  was  "oc- 
cupied and  inhabited"  by  certain  persons  in  conducting  a  busi- 
ness, but  in  the  indictment  on  which  he  was  convicted  it  was 
alleged  that  he  burned  a  "store  building,"  which  was  "occu- 
pied" as  such  by  certain  persons,  it  was  held  that  the  word 
"house"  as  employed  in  the  information  could  not  be  consid- 
ered a  dwelling-house.  This  word,  the  court  held,  should  be 
construed  in  connection  with  the  other  allegations,  as  a  building 
used  as  a  store,  and  consequently  that  no  variance  existed  be- 
tween the  charge  for  which  the  extradition  of  the  defendant 
had  been  secured  and  that  on  which  he  had  been  tried.125 

Where  a  person  is  extradited  on  charges  of  forgery,  embezzle- 
ment and  larceny,  it  is  not  necessary  that  the  government  or 
commissioner  should  elect  as  to  the  charge  for  which  he  shall 
be  tried.  It  is  immaterial  whether  the  indictment  filed  contain 
counts  for  forgery,  larceny  or  embezzlement  if  the  defendant  is 
tried  upon  the  facts  which  appear  in  evidence  before  the  com- 
missioner, and  upon  the  charges,  or  one  of  the  charges,  for  which 
he  is  surrendered.126 


123 


State    v.    Vanderpool,    39    Ohio  Am.  St.  Eep.  476,  33  N.  E.  83,  19  L. 

St.   273,   48  Am.  Eep.  431.     But   see  E.  A.  208;  People  v.  Cross,  135  N.  Y. 

as    to    fugitive    extradited    from    an-  540,  31  Am.  St.  Eep.  853,  32  N.  E. 

other  state,  State  v.  Leidigh,  47  Neb.  247;   State  v.  Glover,  112  N.  C.  898, 

132,  66  N.  W.  309 ;  Lascelles  v.  State,  17  S.  E.  526. 

90  Ga.  362,  35  Am.  St.  Eep.  219,  16  m  State  v.  Spiegel,  111  Iowa,  701, 

S.  E.  946;   Lascelles  v.  Georgia,   148  83  N.  W.  722. 

U.  S.  541,  13  Sup.  Ct.  Eep.  687,  37  123  Cohn  v.  Jones,  100  Fed.  639. 

L.   ed.   551;    State  v.   Patterson,   116  126  Bryant    v.    United    States,    167 

Mo.    516,    22    S.    W.    698;    Common-  U.  S.   104,  17  Sup.  Ct.  Eep.  744,  42 

wealth  v.  Wright,  158  Mass.  151,  35  L.  ed.  94. 


§§    339,    341T      TREATIES  OF  EXTRADITION   AND  PROCEEDINGS.  380 

§  339.  Lesser  offense. — Although  the  laws  of  a  state  permit 
a  person  to  be  convicted  of  a  lesser  crime  under  an  indictment 
charging  a  higher  one,  it  has  been  held  that  a  person  who  has 
been  surrendered  in  pursuance  of  a  treaty  of  extradition  on  a 
charge  of  assault  with  intent  to  commit  murder  cannot  be  con- 
victed of  an  assault  with  intent  to  do  great  bodily  harm.127 

It  is  said  by  the  Department  of  State  that  "since  the  decision 
of  the  supreme  court  in  the  Bauscher  case,  it  is  believed  by  the 
Department  to  be  well  settled  that  a  fugitive  secured  by  extra- 
dition can  neither  be  lawfully  tried  nor  punished  except  for  the 
offense  for  which  his  extradition  was  granted.  And  this  rule 
holds  good  notwithstanding  the  offense  for  which  it  is  proposed 
to  try  or  convict  him  be  included  in  that  for  which  his  extra- 
dition was  granted,  unless  the  former  is  also  included  in  the 
treaty,  which  is  not  the  case  here.  It  is  proper  to  say  that  this 
is  also  the  view  taken  by  the  British  government. ' ' 128 

§  340.  Arrest  on  prior  charge. — The  rule  that  an  extradited 
prisoner  is  immune  from  arrest  extends  to  the  case  when  it  is 
attempted  to  arrest  him  upon  a  prior  judgment  of  conviction. 
Thus,  several  indictments  were  found  against  a  person  for  con- 
spiring to  defraud  the  United  States  of  duties  upon  imports,  and 
of  procuring  the  admission  into  the  United  States  of  goods  in 
violation  of  the  statute.  He  was  convicted,  sentenced  to  prison, 
took  an  appeal,  was  released  on  bail  pending  the  appeal,  and  when 
the  judgment  of  his  conviction  was  affirmed,  he  fled  to  Canada. 
His  extradition  as  a  convict  was  demanded  and  refused,  and 
immediately  afterward  a  new  demand  was  made,  based  upon  an 
indictment  on  which  he  had  not  been  tried.  In  compliance  with 
this  later  demand  he  was  surrendered  by  Canada,  and  while 
traveling  on  the  train  was  arrested  on  a  warrant  based  upon 
the  former  conviction,  and  lodged  in  prison.  He  sued  out  a 
writ  of  habeas  corpus,  and  it  was  held  that  he  should  not  be  ar- 
rested or  tried  under  the  treaty  for  any  other  offense  than  that 

127  People    v.    Stout,    81    Hun,    336,  as  to  the  right  to  try  a  person  brought 
30  N.  Y.  Supp.  898;  People  v.  Cross,  from      another      state      for      another 
135  N.  Y.  540,  31  Am.  St.  Eep.  850,  offense    without    giving    him    an    op- 
32  N.   E.   246.  portunity    to    return,    see    Taylor    v. 

128  Mr.    Uhl,    Acting    Secretary    of  Commonwealth,  29  Ky.  Law  Eep.  714, 
State,    to    Mr.    Hanford,    April    21,  96   S.  W.  440. 

1894,   196  MS.   Dom.  Let.   443.     But 


381  OFFENSE  COMMITTED  PENDING  TRIAL.  [§    341 

with  which  he  was  charged  in  extradition  until  he  should  have  had 
a  reasonable  time  to  return  unmolested  to  the  country  from 
which  he  was  brought,  and  accordingly  he  was  discharged.129 

§  341.  Offense  committed  pending  trial. — In  the  cases  in 
which  the  principle  has  been  announced  that  a  .fugitive  extra- 
dited on  one  charge  cannot  be  tried  on  another  until  the  con- 
clusion of  the  trial,  and  until  he  has  had  a  reasonable  time  to 
return  to  the  country  from  which  he  was  extradited,  the  crime 
for  which  it  has  been  attempted  to  place  the  extradited  prisoner 
on  trial  was  alleged  to  have  been  committed  prior  to  his  extra- 
dition. But  suppose  he  should  commit  a  crime  after  his  return 
and  before  the  expiration  of  the  time  that,  under  ordinary  cir- 
cumstances, would  be  allowed  for  his  return?  This  question  has 
recently  been  decided  in  a  case  in  California  where  a  prisoner 
charged  with  perjury  was  extradited  from  Canada  and  tried 
for  the  offense  before  a  jury  that  disagreed.  During  the  course 
of  the  trial  the  accused  became  a  witness  in  his  own  behalf. 
Before  a  second  trial  was  had  on  the  original  indictment  upon 
which  his  extradition  had  been  secured  he  was  indicted  for  alleged 
perjury  in  testimony  given  by  him  as  a  witness  at  the  trial,  and 
upon  the  second  indictment  was  tried  and  convicted.  He  con- 
tended, in  a  proceeding  of  habeas  corpus,  that  as  he  had  been 
extradited  from  Canada  upon  a  specific  indictment,  he  could  not 
be  tried  upon  any  other  charge  until  the  original  charge  had 
been  disposed  of  and  a  reasonable  time  had  been  given  to  him 
within  which  to  return  to  the  country  from  which  he  had  been 
extradited.  The  court  held  that  the  defendant  could  properly 
be  tried  for  the  offense  committed  after  his  surrender  before  the 
final  disposition  of  the  first  charge,  and  in  the  course  of  the 
opinion  delivered  by  Mr.  Justice  Henshaw,  said:  "The  obligation 
assumed  by  the  country  demanding  the  surrender  is  that  such 
surrender  will  not  be  used  for  the  purpose  of  putting  the  pris- 
oner on  trial  for  any  other  offense  which  he  may  be  claimed  to 
have  committed  before  he  sought  the  asylum  of  the  foreign  coun- 
try; but  we  cannot  see  that  there  would  be  any  breach  of  inter- 

129  Ex  parte  Brown,  205  U.  S.  309,  the  words  "or  be  punished"  were 

27  Sup.  Ct.  Eep.  539,  51  L.  ed.  816;  omitted  in  the  treaty,  after  the  pro- 

S.  C.,  148  Fed.  68.  vision  that  no  person  surrendered  shall 

This   was   held   to   be    so    although  be  triable  or  tried.     Id. 


§  341] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


382 


national  faith  in  compelling  him,  in  common  with  other  persons 
within  the  jurisdiction,  to  assume  responsibility  for  any  offense 
which  he  may  commit  after  his  return.  In  such  case  there  is 
no  possibility  of  the  extradition  proceedings  being  used  as  a 
subterfuge  to  pursue  the  accused  for  an  offense  other  than  the 
one  for  which  he  was  extradited.  In  the  absence  of  any  au- 
thority compelling  such  conclusion,  we  are  not  prepared  to  hold 
that  a  person  extradited  under  a  treaty  may,  after  his  return, 
and  pending  his  trial  upon  the  extradition  charge,  commit  any 
crime,  however  atrocious,  with  absolute  security  against  prosecu- 
tion until  he  shall  have  had  an  opportunity  to  return  to  the 
country  from  which  he  was  taken. ' '  13° 


130  Ex  parte  Collins  (Cal.),  90  Pac. 
827,  830.  The  court  said  that  in  the 
Rauscher  Case,  119  U.  S.  407,  7  Sup. 
Ct.  Eep.  234,  30  L.  ed.  425,  as  well 
as  in  every  other  case  called  to  their 
attention,  the  crime  for  which  it  was 
attempted  to  try  the  extradited  pris- 
oner was  one  which  it  was  alleged  had 
been  committed  prior  to  his  extradi- 
tion. "In  the  present  case,"  said 
the  court,  ' '  on  the  contrary,  the  crime 
with  which  Collins  was  charged  and 
of  which  he  was  convicted  was  com- 
mitted after  his  surrender  by  the  au- 
thorities of  the  country  in  which  he  had 
sought  a  refuge,  and  after  his  return 
to  the  state  of  California.  The  ques- 
tion is  whether  the  immunity  against 
prosecution  for  another  offense,  de- 
clared in  United  States  v.  Rauscher 
and  similar  cases,  extends  to  an 
offense  committed  subsequent  to  the 
extradition.  No  doubt  there  is 
language  in  United  States  v.  Rauscher, 
general  in  its  terms,  which,  taken 
Avithout  regard  to  the  facts  before  the 
court,  would  lend  countenance  to  the 
view  that  the  prisoner  is,  until  the 
conclusion  of  his  trial  for  the  offense 
on  which  he  was  extradited,  and  for 
a  reasonable  time  thereafter,  abso- 
lutely immune  from  prosecution  on 
any  other  charge.  It  is  an  elementary 


doctrine,  however,  that  expressions  in 
judicial  opinions  are  to  be  read  in  the 
light  of  the  facts  before  the  court, 
and  it  is  necessary,  therefore,  to  con- 
sider the  grounds  upon  which  the  de- 
cision in  this  class  of  cases  went  in 
order  to  determine  whether  those 
grounds  are  applicable  to  the  case  of 
a  crime  committed  after  extradition. 
The  reasoning  of  United  States  v. 
Rauscher  is  substantially  this:  That 
in  the  absence  of  treaty  there  is  no 
obligation  upon  any  country  to  sur- 
render to  another  persons  who  are 
charged  with  crime  in  the  latter  coun- 
try. That  as  a  matter  of  comity 
such  surrender  might  be  made,  but 
that,  if  made  in  pursuance  of  a  de- 
mand or  request  for  the  surrender  of 
a  person  accused  of  a  specific  crime, 
there  is  an  implied  undertaking  on  the 
part  of  the  country  receiving  the 
surrender  that  such  surrender  is  asked 
and  received  for  the  purpose  of  put- 
ting the  accused  on  trial  for  that 
crime,  and  for  no  other  purpose. 
When  a  treaty  is  adopted,  providing 
for  the  surrender  of  persons  accused 
of  specific  crimes,  the  same  implied 
obligation  exists,  more  particularly 
in  view  of  the  provision  generally 
found  in  treaties  of  extradition,  that, 
before  any  surrender  shall  be  made, 


383  APPLICATION  FOR  REQUISITION.  [§    342 

§  342.  Application  for  requisition. — Applications  for  extra- 
dition will  not  be  inaugurated  by  the  Department  of  State  on  the 
mere  reference  to  it  of  papers  "without  a  specific  request  or 
expression  of  the  wish  of  the  Department  of  Justice  or  of  the 
authority  of  a  state,  as  the  case  may  be,  through  which  the 
papers  may  come  to  this  Department."131  The  word  "accused" 
in  a  treaty  means  accused  in  due  form  of  law,  and  where  a  pro- 
ceeding by  information  is  authorized,  this  will  form  the  basis 
for  extradition  as  well  as  an  indictment.132 

The  Department  of  State  will  not  allow  technical  reasons  to 
control  its  conduct  where  a  prima  facie  case  is  presented,  but, 
acting  in  the  interest  of  justice,  will  request  extradition  and 
leave  it  to  the  authorities  of  the  country  where  the  accused  is 
found  to  decide  as  to  his  delivery.133  Counsel  will  not  be  heard 
in  opposition  by  the  Department  of  State  to  its  making  of  a  de- 
mand for  extradition.134  The  demand  must  emanate  from  the 
supreme  political  authority  of  the  state  asking  extradition.135  An 
affidavit  for  a  requisition  which  is  made  on  information  and  be- 
lief, and  which  is  not  predicated  on  facts  within  the  knowledge 
of  the  affiant,  is  insufficient.136  The  governor  of  Porto  Rico, 
under  the  provisions  of  the  statute  conferring  upon  him  all  the 
powers  of  the  governors  of  the  territories  of  the  United  States 
that  are  not  locally  inapplicable,  is  authorized,  to  the  same  extent 

there  must  be  some  proof  of  the  com-  131  Mr.  Fish,  Secretary  of  State,  to 

mission    of    the    offense.     To    permit  Mr.  Pierrepont,  February  2,  1876,  111 

a  country  to  seek  the  extradition  of  MS.   Dom.   Let.   539.     See,  also,   Mr. 

a    person    found    in    another    country  Hay,   Secretary   of   State,   to   Messrs. 

upon   the   ground  that  he  is   charged  Kingsford  &  Son,  February  25,  1899, 

with  the  commission  of  a  specific  of-  235  MS.  Dom.  Let.  152. 

fense  covered  by  an  extradition  treaty,  132  State  v.  Rowe,  104  Iowa,  323,  73 

and    then,    when    his    surrender    has  N.  W.  833. 

been    granted    upon    that    ground,    to  1:!3  Mr.  Bayard,  Secretary  of  State, 

try  him  for  some  other  offense,  would  to   Mr.   Torrey,  March   10,   1886,   159 

make  it  possible  to  evade  the  provi-  MS.    Dom.   Let.    279. 

sions  of  the  treaty,  and  to  use  it  as  34  Mr.  Gresham,  Secretary  of  State, 

a  pretense  for  securing  possession  of  to  Mr.  Peffer,  January  30,  1895,  200 

the  person  of  a  prisoner  whom  it  was  MS.   Dom.  Let.  425. 

not    designed    to   try   for   the   charge  135  Gushing,  8   Op.   Atty.  Gen.   240. 

upon  which  his  extradition  was  nom-  136  Ex  parte  Cheatham   (Tex.  Grim. 

inally  sought,  but  for  some  other  of-  App.),  95  S.  W.  1077. 

fense   which   might   or   might   not   be 

in  itself  extraditable." 


§§    343,    344]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  384 

as  the   governor  of   a  territory,  to  issue   a  requisition  for  the 
rendition  of  a  fugitive  criminal.137 

§  343.  Mandate. — Extradition  proceedings  may  be  initiated 
by  the  President  without  the  requirement  of  such  proof  as  would 
justify  extradition.138  At  one  time  it  was  held  that  it  was  neces- 
sary to  produce  a  requisition  from  the  demanding  government 
before  the  commissioner  could  act.139  But  the  later  view  is  that 
now  it  is  not  essential  that  there  should  be  a  requisition  from  the 
demanding  government  to  enable  a  United  States  commissioner 
to  entertain  jurisdiction  over  extradition  proceedings.140 

Mr.  Bayard,  Secretary  of  State,  said:  "After  a  careful  exam- 
ination of  the  treaty  now  in  force  between  the  United  States  and 
Great  Britain  in  reference  to  extradition,  I  have  come  to  the  con- 
clusion that  it  is  neither  necessary  nor  proper  that  any  mandate 
or  other  authorization  should  issue  from  this  Department  as  a 
preliminary  to  arrest  by  the  commissioners  or  other  judicial  offi- 
cers in  whom  the  function  of  arrest  and  examination  in  such 
cases  is  specifically  vested.  I  am  strengthened  in  this  conclusion 
by  the  fact  that  in  all  cases  in  which  the  question  had  come  up 
before  the  judicial  department  of  this  Government  it  has  been 
held  that,  under  the  treaty  in  question  and  the  distinctive  legis- 
lation of  the  United  States,  no  such  preliminary  process  of  this 
Department  is  requisite.  It  is  proper,  also,  that  this  seems  to  be 
the  general  sense  of  those  who  represent  Her  Majesty's  Gov- 
ernment in  such  process,  since  in  most  cases  the  application  for 
arrest  is  made  directly  to  the  commissioner,  or  other  judicial  au- 
thority vested  with  the  jurisdiction,  the  case  not  coming  before 
this  Department  until  the  application  for  surrender. ' ' 141 

§  344.  Who  may  act  as  magistrate. — A  judge  of  a  court  of 
record  of  general  jurisdiction  has  authority  to  entertain  com- 


137 


In  re  Kopel,  148  Fed.  505.     See  Kaine's    Case,    14    How.    129,    14   L. 

People  v.  Bingham,  102  N.  Y.  Supp.  ed-  355- 
878,  117  App.  Div  411.  14°  Grin   v'    Shine>    187   U'    S"    195> 

»  Gushing,  6  Op.  Atty.  Gen.  217.  23  ^'   Ct'  **•  98>  47  L'  ed*  13°' 

Benson  v.  McMahon,   127  U.   S.   457, 

•  In  re  Herns,  32  Fed.  583;  In  re  g  gup>  ct>  Rep>  mo>  32  L    ^  ^ 

Henrich,  5  Blatchf .  414,  Fed.  Cas.  No.          M  Mr>  Bayard,  Secretary  of  State, 

6369;  In  re  Farez,  7  Blatchf.  34,  345,  to  Mr.  West,  February  16,  1886,  MS. 

Fed.     Cas.     Nos.     4644,     4645.     See  Notes  to  Great  Britain,  XX,  189. 


385  SUFFICIENCY  OF   THE  COMPLAINT.  [§    345 

plaints  in  extradition  cases.  It  is  not  necessary  to  recite  in  the 
warrant  of  arrest  issued  by  him  that  he  possesses  authority  to 
act  in  such  cases,  because  he  does  not  need  a  special  appointment 
for  the  purpose.142  Under  the  law  and  treaties,  a  commissioner  of 
the  circuit  court  of  the  United  States  who  has  been  specially  ap- 
pointed to  act  in  extradition  cases  is  a  competent  examining  mag- 
istrate.143 Such  commissioner  may  grant  continuances  in  his 
discretion,  and  a  statute  of  the  state  limiting  continuances  to  ten 
days  does  not  limit  his  action.144  But  as  to  the  amount  of  proof 
required,  Judge  Morrow,  United  States  District  Judge,  sitting  as 
a  committing  magistrate,  held  that  as  the  defendants  were  found 
within  the  territory  of  California,  the  law  of  that  state  must  fur- 
nish the  rule  of  procedure  in  the  examination.145  The  proceeding 
before  the  commissioner  is  not  to  be  regarded  as  a  final  trial,  but 
as  a  preliminary  examination  before  a  committing  magistrate.140 
In  such  cases  attorneys  are  not  required  to  appear  for  foreign 
governments ; 14T  nor  is  it  essential  that  the  proceedings  should 
either  be  conducted  or  approved  by  the  attorney  of  the  United 
States  for  the  district.148  There  is  no  provision  for  bail  in  the 
law  or  in  the  treaties.149 

§  345.  Sufficiency  of  the  complaint. — A  complaint  made  solely 
on  information  and  belief,  without  attempting  to  set  forth  the 
sources  of  information  or  the  grounds  of  belief,  is  defective.150 
But  if  it  contains  various  counts,  some  of  which  are  made  on 
the  personal  knowledge  of  the  complainant,  the  presence  of  a 
count  based  merely  on  information  and  belief  will  not  invalidate 
the  complaint.151  If,  however,  a  complaint  is  verified  by  the 
consul  of  a  foreign  government,  in  which  the  offense  is  properly 

'*-  Ex  parte  McCabe,  46  Fed.  363,  147  Black,  9  Op.  Atty.  Gen.  497. 

12  L.  E.  A.  589.  14S  Black,  9  Op.  Atty.  Gen.  246. 

143  Eice    v.    Ames,    180    IT.    S.    371,  14!'  In  re  Ezeta,  62  Fed.  972;  In  re 
21  Sup.  Ct.  Eep.  406,  45  L.  ed.  577;  Carrier,  57  Fed.   578;    In  *e  Wright, 
Nelson,   4   Op.   Atty.   Gen.    201;    Cal-  123    Fed.    463.     But    see    Wright    v. 
der's  Case,  6  Op.  Atty.  Gen.  91.  Henkel,    190   U.    S.    40,    23    Sup.    Ct. 

144  Eice  v.  Ames,  180  U.  S.  371,  21  Eep.  781,  47  L.  ed.  948. 

Sup.  Ct.  Eep.  406,  45  L.  ed.  577.  tr'°  Eice  v.  Ames,  180  U.  S.  371,  21 

14"'  In  re  Ezeta,  62  Fed.  972.  Sup.  Ct.  Eep.  406,  45  L.  ed.  577. 

146  Benson  v.  McMahon,   127  U.   S.  «l  Eice  v.  Ames,  180  U.  S.  371,  21 

457,  8  Sup.  Ct.  Eep.  1240,  32  L.  ed.  Sup.  Ct.  Eep.  406,  45  L.  ed.  577. 

2H4;   In  re  Breen,  73  Fed.  458. 
Treaties — 25 


§    346]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  386 

charged,  it  will  be  sufficient,  even  if  the  affiant  does  not  make 
the  allegations  on  his  personal  knowledge  of  the  facts.152 

Where  it  is  stated  in  a  complaint  that  the  complainant  is  the 
duly  accredited  official  agent  and  representative  of  a  foreign 
government,  and  it  is  signed  by  him  as  consul  of  that  govern- 
ment, it  is  immaterial  that  he  did  not  swear  positively  in  the 
jurat  that  he  was  such  consul.153  And  a  complaint  may  be  made 
by  any  person  acting  under  the  authority  of  the  foreign  govern- 
ment who  has  knowledge  of  the  facts,  or,  in  the  absence  of  such 
person,  by  a  consul  or  official  representative  of  the  foreign  gov- 
ernment founded  upon  depositions  in  his  possession.154  It  is  suffi- 
cient if  it  appears  that  the  complainant  is  acting  for  the  foreign 
government.155 

While  the  request  or  authority  of  the  government  within  whose 
jurisdiction  the  offense  was  committed  must  appear  at  some  stage 
in  the  proceedings,  it  is  not  essential  that  it  should  appear  in 
the  first  instance,  Hence  where  a  complaint  was  made  by  a 
person  Describing  himself  as  "  a  resident  and  citizen  of  Montreal, ' ' 
but  it  did  not  show  that  it  was  made  at  the  request  or  by  au- 
thority of  the  government  of  Canada,  it  was  held  that  a  prisoner 
was  not  entitled  to  a  discharge  on  habeas  corpus  where,  on  the 
hearing,  it  was  shown  that  an  agent  to  act  in  securing  the  extra- 
dition of  the  fugitive  had  been  appointed  by  the  Canadian  gov- 
ernment.156 

The  German  imperial  code  supersedes  certain  laws  of  Prussia, 
but  an  application  for  extradition  is  not  rendered  defective  by  an 
allegation  that  the  offense  was  committed  contrary  to  the  law  of 
the  Kingdom  of  Prussia.157 

§  346.  Precision  of  indictment  not  required. — It  is  not  neces- 
sary that  the  complaint  should  set  out  the  offense  with  the  par- 
ticularity of  an  indictment,  but  it  will  be  sufficient  if  it  is  in 
conformity  with  the  requirements  of  a  preliminary  complaint 
under  the  local  law  of  the  place  in  which  the  accused  is  found.158 

152  In  re  Farez,  7  Blatchf.  345,  Fed.  13(i  In  re  Mineau,  45   Fed.   188. 
Cas.  No.  4645.  13T  Terlinden    v.    Ames,    184    U.    S. 

153  In  re  Adult,  55  Fed.  376.  270,  22  Sup.  Ct.  Eep.  484,  46  L.  ed. 

154  Grin  v.  'Shine,  187  U.  S.  181,  23  534. 

Sup.  Ct.  Eep.  98,  47  L.  ed.  130.  15S  In  re  Herskovitz,  136  Fed.  713. 

in5  In  re  Orpen,  86  Fed.  760.       . 


387  ORDINARY    TECHNICALITIES    NOT    APPLICABLE.       [§§    347,    348 

Article  10  of  the  treaty  with  Great  Britain  authorizes  extra- 
dition of  persons  charged  with  "assault  with  intent  to  commit 
murder."  An  information  charging  the  accused  with  "assault 
with  intent  to  kill  and  murder"  is  sufficient  to  bring  the  offense 
within  this  provision.159 

§  347.  Ordinary  technicalities  not  applicable. — The  purpose  of 
a  proceeding  in  extradition  is  to  put  the  person  on  trial  under  the 
laws  of  his  own  country,  and  as  it  is  unreasonable  to  expect  that 
there  will  be  an  exact  correspondence  between  the  laws  of  the 
two  countries,  the  ordinary  technicalities  of  criminal  proceedings 
are  in  the  contruction  and  carrying  out  of  treaties  of  extradition 
applicable  only  to  a  limited  extent.  The  indictment  is  to  be  con- 
strued not  by  one  general  description  alone,  but  by  a  full  and 
liberal  consideration  of  all  its  substantial  averments.160  A  com- 
plaint charging  an  offense  at  common  law  is  not  defective  be- 
cause it  concludes  "against  the  form  of  the  statute,"  and  in  such 
case  no  proof  of  the  foreign  statute  is  necessary.161  If  it  clearly 
appears  that  a  treaty  offense  was  meant  to  be  charged,  the  com- 
plaint will  be  sufficient.162  Where  a  person  is  extradited  under 
an  indictment  charging  an  extraditable  offense,  and  the  indict- 
ment is  quashed  in  the  demanding  state,  he  is  not  entitled  to  a 
reasonable  time  to  return  before  being  called  on  to  answer  a  new 
indictment  charging  the  same  offense.163 

§  348.  Arrest  of  fugitive. — "It  is  a  common  practice  for  mag- 
istrates to  issue  warrants  for  the  arrest  of  fugitives  from  justice, 
and  to  detain  them  for  a  reasonable  time  on  complaint  duly 
made  before  them  by  consular  officers  on  the  strength  of  tele- 
graphic information  received  from  their  government. ' ' 164  The 
fugitive  may  be  arrested  a  second  time  on  a  new  complaint.165 

The  practice  of  issuing  warrants  for  arrest  is  governed  by  the 
provisions  of  the  Revised  Statutes  of  the  United  States,  and  is 

159  United  States  v.  Piaza,  133  Fed.  1M  Mr.    Moore,    Assistant   Secretary 
998.  of    State,    to    the    Attorney    General, 

160  United  States  v.  Greene,  146  Fed.  May  26,  1898,  227  MS.  Dom.  Let.  651. 
766.  16S  Gushing,  6  Op.  Atty.  Gen.  91;  In 

1C1  Ex    parte   Lane,    6    Fed.    34.  re  Macdonnell,  11  Blatchf.  170,  Fed. 

1C2  In  re  Both,  15  Fed.  506.  Cas.  No.  8772. 

163  Ex    parte    Fischl     (Tex.    Crim. 
App.),    100    S.   W.    773. 


§    349]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  388 

well  settled.106  It  is  the  duty  of  a  United  States  marshal  who 
executes  a  warrant  of  arrest  issued  by  an  extradition  commis- 
sioner in  another  district  or  state  to  take  the  prisoner  for  exam- 
ination before  the  nearest  magistrate  in  the  district  in  which  the 
arrest  is  made.167  Wrere  the  British  government  has  applied  for 
the  extradition  of  a  fugitive,  his  arrest  may  be  made  on  a  British 
vessel  in  the  waters  of  the  United  States.168  A  commitment  of 
the  accused  for  extradition  from  the  United  States  will  not  be 
invalidated  by  evidence  of  malice  on  the  part  of  the  prosecuting 
witness,  at  whose  instance  the  criminal  prosecution  was  com- 
menced in  a  foreign  country.169 

§  349.  Provisional  arrest. — The  treaty  between  the  United 
States  and  Mexico  of  February  22,  1899,  provides  for  the  pro- 
visional arrest  and  detention  of  fugitives  from  justice  by  de- 
claring that  each  government,  in  receiving  a  proper  request,  shall 
endeavor  to  procure  the  arrest  of  the  criminal,  ' '  and  to  keep  him 
in  safe  custody  for  such  time  as  may  be  practicable,  not  exceeding 
forty  days,  to  await  the  production  of  the  documents  upon  which 
the  claim  for  extradition  is  founded."  Mr.  Hill,  Acting  Secre- 
tary of  State,  in  a  case  where  this  limit  had  nearly  expired,  sug- 
gested that  the  papers  should  be  promptly  forwarded  to  the 
examining  magistrate,  stating  that  there  was  no  provision  under 
the  laws  of  the  United  States  for  extending  the  period  of  pro- 
visional detention  provided  for  by  the  treaty.170  But  where  the 
treaty  contains  no  such  provision,  it  would  seem  that  there  is  no 
limit.  In  1888  Mr.  Bayard,  Secretary  of  State,  in  a  note  to  the 
Belgian  government,  called  attention  to  the  decision  of  the  su- 
preme court  of  the  United  States  in  Benson  v.  McMahon,171 
holding  that  under  section  5270  of  the  Revised  Statutes,  a  fugi- 
tive may  be  arrested  and  held  for  examination  without  inter- 

166  Rev.  Stats.,  sees.  5270,  5271;   In  his  discharge  to  permit  him  to  return 
re  Mineau,  45  Fed.  188.  to   the  state   whence   he  came  before 

167  Pettit  v.  Walshe,  194  U.  S.  205,  such  a  suit  may  be  commenced.     Rut- 
24  Sup.  Ct.  Rep.  657,  48  L.  ed.  938.  ledge  v.  Krauss,  73  N.  J.  L.  397,  63 

168  In  re  Newman,  79  Fed.  622.  Atl.  988. 

169  In  re  Herskovitz,  136  Fed.  713.  17°  To    Mr.    Aspiroz,    Mexican    Am- 
Where  a  person  has  been  brought  into  bassador,  No.  174,  May  14,  1901,  MS. 
the  state  by  means  of  extradition,  a  Notes  to  Mexican  Leg.,  X,  555. 
civil   suit   may   be   instituted   against  m  127  U.  S.  457,  8  Sup.  Ct.  Rep. 
him  before  his  discharge.     lie  is  not  1240,  32  L.  ed.  234. 

entitled    to    a    reasonable    time   after 


389  EVIDENCE  REQUIRED.  [§  350 

ventiou  on  the  part  of  the  President,  or  without  proof  of  the 
making  of  a  requisition,  and  said:  "Under  the  statute  it  is  be- 
lieved that  there  exists  in  the  United  States  a  very  liberal  system 
of  provisional  arrest  and  detention  of  fugitives  from  foreign 
justice,  under  which,  upon  oaths  made  on  information  and  belief 
(a  requirement  which  the  preliminary  mandate  did  not  dis- 
pense with),  such  fugitives  are  constantly  arrested  and  held 
without  interference  on  the  part  of  the  executive  branch  of  the 
Government  of  the  United  States  to  await  examination  before 
our  judicial  magistrates  in  accordance  with  our  laws.  No  time 
is  specified  during  which  a  fugitive  may  be  so  held;  but  the  ju- 
dicial officer  decides  in  each  case  what  term  is  reasonable  under 
all  the  circumstances  for  the  detention  of  the  fugitives  pending 
the  reception  of  the  formal  proofs  of  his  culpability  and  their 
examination.  Save  in  cases  in  which  the  question  of  the  neces- 
sity of  executive  interference  was  formally  raised,  this  Depart- 
ment has  received  no  complaints  of  the  refusal  of  judicial  magis- 
trates to  grant  proper  facilities.  On  the  contrary,  it  is  believed 
that  such  magistrates  have  generally  construed  their  powers  with 
as  much  liberality  as  is  consistent  with  the  security  which  all 
persons,  both  citizens  and  foreigners,  should  enjoy  against  un- 
founded arrest  and  detention."  1T- 

350.  Evidence  required. — Where  'the  evidence  submitted 
shows  a  probability  of  guilt  of  such  a  character  that  a  cautious 
man  would  be  led  to  believe  that  the  fugitive  is  guilty  of  the 
offense  with  which  he  is  charged,  it  is  sufficient  for  his  commit- 
ment for  surrender.173  In  England  it  is  sufficient  that  prima  facie 
evidence  is  produced  of  what  would  be  a  crime  against  English 
law.174  Proofs  are  admissible  where  the  certificate  of  the  Amer- 
ican Ambassador  states  that  they  "are  properly  and  legally  au- 

172  Mr.  Bayard,  Secretary  of  State,  JUmson   v.   McMahon,   127  U.   S.  462, 
to  Mr.  Parkhurst,  No.  18,  January  28,  8  Sup.  Ct.  Rep.  1240,  32  L.  ed.  234; 
1898,  For.  Eel.  1889,  50,  53.  In   re   Wadge,   15   Fed.   864,   16   Fed. 

173  In  re  Ezeta,  62  Fed.  972;  Mimns  332,  21  Blatchf.  300;   In  re  Macdon- 
v.  De  Nemours,  3  Wash.  C.  C.  31,  Fed.  nell,    11   Blatchf.   170,   Fed.   Cas.   No. 
('as.  No.  9926;  In  re  Farez,  7  Blatchf.  8772. 

345,  Fed.  Cas.  No.  4645;   In  re  Beh-  174  In   re   Bellencontre,   2   Q.   B.   D. 

remit,   22   Fed.    699,   23   Blatchf.   40;       122. 


§    351]  TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  390 

thenticated,  so  as  to  entitle  them  to  be  received  in  evidence  for 
similar  purposes  by  the  tribunals  of  Great  Britain. ' ' 175 

Under  the  federal  statute  providing  for  the  authentication  of 
depositions  taken  in  a  foreign  country  to  be  used  in  extradition 
proceedings,  it  is  sufficient  if  the  certificate  of  a  principal  diplo- 
matic or  consular  officer  of  the  United  States  follows  the  words 
of  the  statute,.176  A  commissioner  is  justified  in  committing  a 
prisoner  for  extradition  on  a  charge  of  forgery  by  circumstantial 
evidence  as  to  the  manner  of  drawing  checks  and  posting  books 
by  an  employee.177  If  a  certificate  is  signed  by  the  charge 
d'affaires  ad  interim,  the  court  will  take  judicial  notice  that  he 
was  the  principal  diplomatic  officer  when  the  certificate  was 
given.178 

§  351.  Foreign  depositions. — Where  the  statute  provides  that 
foreign  depositions  and  other  documents  may  be  received  in  ex- 
tradition proceedings  when  certified  as  "properly  and  legally 
authenticated  so  as  to  entitle  them  to  be  received  for  similar  pur- 
poses by  the  tribunals  of  the  foreign  country  from  which  the 
accused  party  shall  have  escaped,"  the  addition  of  the  words 
"as  evidence"  will  not  vitiate  the  certificate.179 

The  same  weight  is  to  be  allowed  to  depositions  as  if  the 
deponent  was  present  at  the  hearing.180  Papers  purporting  to 
be  depositions,  and  duly  certified  as  required  by  law,  are  admis- 
sible for  what  they  are  worth,  although  from  the  recitals  con- 
tained in  the  introductory  part  it  does  not  distinctly  appear  that 
the  statements  contained  in  the  papers  were  made  on  oath.181 

In  a  proceeding  to  extradite  on  a  charge  of  embezzlement  for 
a  failure  to  account  for  moneys  received,  it  is  immaterial  whether 
the  amount  accounted  for  was,  according  to  certain  testimony, 
greater  or  less  than  the  amount  charged.182  Where  a  treaty  pro- 
vides that  extradition  shall  be  granted  only  "upon  such  evidence 
of  criminality  as,  according  to  the  laws  of  the  place  where  the 
fugitive  or  person  so  charged  shall  be  found,"  would  justify  his 

175  In  re  Breen,  73  Fed.  458.  1T9  Grin  v.  Shine,  187  U.  S.  181,  23 

176  In  re  Krojanker,  44  Fed.  482 ;  In       Sup.  Ct.  Eep.  98,  47  L.  ed.  130. 

TO  Behrendt,  23  Blatchf.  40,  22  Fed.  18°  In  re  Farez,  7  Blatchf.  491,  Fed. 

699.  See,  also,  In  re  Ezeta,  62  Fed.  Gas.  No.  4646.  See  In  re  Wadge,  16 
972.  Fed.  332,  21  Blatchf.  300. 

m  In  re  Bryant,  80  Fed.  282.  m  In  re  Ezeta,  62  Fed.  972. 

178  In  re  Orpen,  86  Fed.  760.  182  In  re  Breen,  73  Fed.  458. 


391  EVIDENCE   ON   BEHALF  OF  FUGITIVE.  [§§    362,    353 

I 

apprehension  and  commitment  for  trial  if  the  offense  had  been 
committed  in  such  place,  the  law  of  the  state  in  which  he  is  found 
will  be  the  law  of  the  place  by  which  the  proceeding  will  be 
governed.183 

§  352.  Evidence  on  behalf  of  fugitive. — On  his  examination 
before  a  magistrate  the  fugitive  has  the  right  to  produce  wit- 
nesses in  his  own  behalf.184  Evidence  of  insanity  may  be  received 
to  rebut  the  presumption  of  guilt.185  On  a  charge  of  attempt  to 
commit  murder,  where  it  was  alleged  by  the  prisoner  that  he 
was  acting  in  obedience  to  the  command  of  a  superior  officer, 
and  that  his  victim  was  the  aggressor,  it  was  held  that  these  were 
matters  of  justification  and  defense  which  could  properly  be  de- 
termined only  by  a  trial  in  the  country  seeking  his  extradition.186 
It  is  not  necessary  that  the  evidence  should  be  conclusive,  or  that 
the  commissioner  should  be  absolutely  convinced  of  the  guilt 
of  the  accused,  but  it  will  be  sufficient  if  the  prisoner  is  held  on 
competent  legal  evidence,  and  there  is  probable  cause  for  believ- 
ing him  guilty  of  the  offense  with  which  he  is  charged.187 

§  353.  Habeas  corpus  proceedings. — Writs  of  habeas  corpus 
may  be  granted  by  the  federal  courts  when  it  appears  that  a 
person  is  deprived  of  his  liberty  in  violation  of  a  law  or  a  treaty 
of  the  United  States,  and  where  it  is  sought  to  try  a  person  for 
an  offense  other  than  that  for  which  he  was  surrendered,  a  writ 
may  issue.188  It  is  a  settled  rule  that  a  writ  of  habeas  corpus 
cannot  perform  the  office  of  a  writ  of  error.  If  the  committing 
magistrate  has  jurisdiction  of  the  subject  matter,  and  if  the 
offense  charged  is  within  the  terms  of  the  treaty,  and  there  is 
competent  legal  evidence  before  him  sufficient  to  authorize  him 

18::  Pettit  v.  Walshe,  194  U.  S.  205,  surrender  the  prisoner,  for  the  reason 
24  Sup.  Ct.  Rep.  657,  48  L.  ed.  938;  that  the  crime  for  which  he  was  corn- 
In  re  Frank,  107  Fed.  272.  mitted  was  not  mentioned  in  the  re- 

184  In  re  Farez,  7  Blatchf.  345,  Fed.  quisition     for     his     extradition,     the 
Cas.    No.    4645;     In    re    Henrich,    5  crimes   there   specified   being   murder, 
Blatchf.  414,  Fed.  Cas.  No.  6369;  Ex  arson    and    robbery.     American    Law 
parte   Boss,    2    Bond,   252,   Fed.    Cas.  Eev.,    January,    February,    1895,    8. 
No.  12,069 ;  In  re  Kelley,  25  Fed.  268.  1ST  United  States  v.  Piaza,  133  Fed. 

185  Phillips,  6  Op.  Atty.  Gen.  642.  998. 

186  In  re   Cienfuegos,   62   Fed.   972.-  18S  Cohn  v.  Jones,  100  Fed.  639.    . 
The  Department  of  State  refused  to 


353] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


392 


to  exercise  his  judgment  as  to  whether  the  facts  are  sufficient  to 
establish  the  criminality  of  the  accused  for  the  purpose  of  extra- 
dition, his  decision  will  not  be  reviewed  on  habeas  corpus.1®* 
Ordinarily,  the  federal  courts  will  not  interfere  with  a  prosecution 
pending  in  a  state  court  until  the  party  whose  rights  are  invaded 
has  exhausted  every  remedy  for  relief  which  the  laws  of  the 
state  afford.190 


""'  Ornelas  v.  Ruiz,  161  U.  S.  502, 

16  Sup.  Ct.  Kep.  689,  40  L.  ed.  787; 
Terlinden  v.  Ames,  384  U.  S.  270,  22 
Sup.  Ct.  Eep.  484,  46  L.  ed.  534;  Bry- 
ant v.  United  States,  167  U.  S.  104, 

17  Sup.  Ct.  Rep.   744,  42  L.  ed.  94; 
In  re  Krojanker,  44  Fed.  482;   In  re 
Adutt,  55  Fed.  376;  Neely  v.  Henkel, 
180  U.  S.  109,  21  Sup.  Ct.  Rep.  302, 
45  L.  ed.  448. 

1W)  Whitten  v.  Tomlinson,  160  U.  S. 
231,  16  Sup.  Ct.  Rep.  297,  40  L.  ed. 
406;  New  York  v.  Eno,  155  U.  S. 
89,  15  Sup.  Ct.  Rep.  30,  39  L.  ed. 
80;  Ex  parte  Royall,  117  U.  S.  241,  6 
Sup.  Ct.  Rep.  734,  29  L.  ed.  868; 
Baker  v.  Grice,  169  U.  S.  284,  18  Sup. 
Ct.  Rep.  323,  42  L.  ed.  748;  Minne- 
sota v.  Brundage,  180  U.  S.  499,  21 
Sup.  Ct.  Rep.  455,  45  L.  ed.  639; 
Robb  v.  Connolly,  111  U.  S.  624,  4 
Sup.  Ct.  Rep.  544,  28  L.  ed.  542; 
United  States  v.  Rauscher,  119  U.  S. 
407,  7  Sup.  Ct.  Rep.  234,  30  L.  ed. 
425;  Ex  parte  Collins,  154  Fed.  980, 
In  Whitten  v.  Tomlinson,  160  U.  S. 
231,  240-242,  16  Sup.  Ct.  Rep.  297, 
40  L.  ed.  406,  it  is  said :  ' '  The  power 
thus  granted  to  the  courts  and  judges 
of  the  United  States  clearly  extends 
to  prisoners  held  in  custody,  under  the 
authority  of  a  State,  in  violation  of 
the  Constitution,  laws  or  treaties  of 
the  United  States.  But  in  the  exer- 
cise of  this  power  the  courts  of  the 
United  States  are  not  bound  to  dis- 
charge by  writ  of  habeas  corpus  every 
such  prisoner. 


1 '  The  principles  which  should  gov- 
ern their  action  in  this  matter  were 
stated  upon  great  consideration,  in 
the  leading  case  of  Ex  parte  Royall, 
117  U.  S.  241,  6  Sup.  Ct.  Rep.  734, 
29  L.  ed.  868,  and  were  repeated  in 
one  of  the  most  recent  cases  upon  the 
subject,  as  follows: 

* '  We  cannot  suppose  that  Congress 
intended  to  compel  those  courts,  by 
such  means,  to  draw  to  themselves,  in 
the  first  instance,  the  control  of  all 
criminal  prosecutions  commenced  in 
state  courts  exercising  authority  with- 
in the  same  territorial  limits,  where 
the  accused  claims  that  he  is  held  in 
custody  in  violation  of  the  Constitu- 
tion of  the  United  States.  The  in- 
junction to  hear  the  case  summarily, 
and  thereupon  '  to  dispose  of  the  party 
as  law  and  justice  require,'  does  not 
deprive  the  court  of  discretion  as  to 
the  time  and  mode  in  which  it  will 
exert  the  powers  conferred  upon  it. 
That  discretion  should  be  exercised  in 
the  light  of  the  relations  existing,  un- 
der our  system  of  government,  be- 
tween the  judicial  tribunals  of  the 
Union  and  of  the  States,  and  in  recog- 
nition of  the  fact  that  the  public 
good  requires  that  those  relations  be 
not  disturbed  by  unnecessary  conflict 
between  courts  equally  bound  to  guard 
and  protect  rights  secured  by  the  Con- 
stitution. 'Where  a  person  is  in  cus- 
tody, under  process  from  a  state 
court  of  original  jurisdiction,  for  an 
alleged  offense  against  the  laws  of 


393 


APPEAL  AND  NOT  WRIT  OF  ERROR. 


[§  354 


§  354.  Appeal  and  not  writ  of  error. — Where  the  construction 
of  a  treaty  of  extradition  is  involved,  an  appeal,  and  not  a  writ 
of  error,  from  a  decision  of  a  district  court  denying  an  applica- 
tion for  a  discharge  upon  a  writ  of  habeas  corpus  is  authorized  by 


such  State,  and  it  is  claimed  that  he 
is  restrained  of  his  liberty  in  viola- 
tion of  the  Constitution  of  the  United 
States,  the  Circuit  Court  has  a  discre- 
tion, whether  it  will  discharge  him, 
upon  habeas  corpus,  in  advance  of  his 
trial  in  the  court  in  which  he  is  in- 
dicted; that  discretion,  however,  to 
be  subordinate  to  any  special  circum- 
stances requiring  immediate  action. 
When  the  state  court  shall  have  finally 
acted  upon  the  case,  the  Circuit  Court 
has  still  a  discretion  whether,  under 
all  the  circumstances  then  existing,  the 
accused,  if  convicted,  shall  be  put  to 
his  writ  of  error  from  the  highest 
court  of  the  State,  or  whether  it  will 
proceed,  by  writ  of  habeas  corpus, 
summarily  to  determine  whether  the 
petitioner  is  restrained  of  his  liberty 
in  violation  of  the  Constitution  of  the 
United  States. '  Ex  parte  Royall,  117 
U.  S.  241,  251-253,  6  Sup.  Ct.  Rep. 
734,  29  L.  ed.  868;  New  York  v. 
Eno,  155  U.  S.  89,  93-95,  15  Sup.  Ct. 
Rep.  30,  39  L.  ed.  80. 

' '  In  Ex  parte  Royall  and  in  New 
York  v.  Eno,  it  was  recognized  that 
in  cases  of  urgency,  such  as  those  of 
prisoners  in  custody,  by  authority  of 
a  State,  for  an  act  clone  or  omitted 
to  be  done  in  pursuance  of  a  law  of 
the  United  States,  or  of  an  order  or 
process  of  a  court  of  the  United 
States,  or  otherwise  involving  the  au- 
thority and  operations  of  the  general 
government,  or  its  relations  to  foreign 
nations,  the  courts  of  the  United 
States  should  interpose  by  writ  of 
habeas  corpus. 

''Such  an  exceptional  case  was  In 
re  Neagle,  135  U.  S.  M,  10  Sup.  Ct. 


Rep.  658,  34  L.  ed.  55,  in  which  a 
deputy  marshal  of  the  United  States 
charged  under  the  Constitution  and 
laws  of  the  United  States  with  the 
duty  of  guarding  and  protecting  a 
judge  of  a  court  of  the  United  States, 
and  of  doing  whatever  might  be  nec- 
essary for  that  purpose,  even  to  the 
taking  of  human  life,  was  discharged 
on  habeas  corpus  from  custody  under 
commitment  by  a  magistrate  of  a 
.State  on  a  charge  of  homicide  com- 
mitted in  the  performance  of  that 
duty. 

"Such  was  In  re  Loney,  134  U.  S. 
372,  10  Sup.  Ct.  Rep.  584,  33  L.  ed. 
949,  in  which  a  person  arrested  by 
order  of  a  magistrate  of  a  State,  for 
perjury  in  testimony  given  in  the  case 
of  a  contested  Congressional  election, 
was  discharged  on  habeas  corpus,  be- 
cause a  charge  of  such  perjury  was 
within  the  exclusive  cognizance  of  the 
courts  of  the  United  States,  and  to 
permit  it  to  be  prosecuted  in  the 
state  courts  would  greatly  impede  and 
embarrass  the  administration  of  jus- 
tice in  a  national  tribunal. 

' '  Such,  again,  was  Wildenhaus ' 
Case,  120  U.  S.  1,  7  Sup.  Ct.  Rep. 
385,  30  L.  ed.  565,  in  which  the  ques- 
tion was  decided  on  habeas  corpus 
whether  an  arrest,  under  authority  of 
a  State,  of  one  of  the  crew  of  a 
foreign  merchant  vessel,  charged  with 
the  commission  of  a  crime  on  board 
of  her  while  in  a  port  within  the 
State,  was  contrary  to  the  provisions 
of  a  treaty  between  the  United  States 
and  the  country  to  which  the  vessel 
belonged. 


§  354] 


TREATIES    OF    EXTRADITION    AND    PROCEEDINGS. 


394 


the  act  providing  for  the  creation  and  jurisdiction  of  the  court 
of  appeals.  The  fact  that  it  becomes  essential  or  proper  for  a 
federal  circuit  court  to  construe  the  acts  of  Congress  passed  for 
the  purpose  of  effectuating  the  provisions  of  an  extradition 


1  *  But,  except  in  such  peculiar  and 
urgent  cases,  the  courts  of  the  United 
States  will  not  discharge  the  prisoner 
by  habeas  corpus  in  advance  of  a  final 
determination  of  his  case  in  the  courts 
of  the  State;  and  even  after  such 
final  determination  in  those  courts, 
will  generally  leave  the  petitioner  to 
the  usual  and  orderly  course  of  pro- 
ceeding by  writ  of  error  from  this 
Court. ' ' 

In  Baker  v.  Grice,  169  U.  S.  284, 
18  Sup.  Ct.  Eep.  323,  42  L.  ed.  748, 
violation  of  a  Texas  statute  against 
the  petitioner  was  charged  with  the 
trusts.  He  was  discharged  on  habeas 
corpus  by  the  circuit  court  on  the 
ground  that  the  statute  conflicted 
with  the  constitution  of  the  United 
States.  But  the  supreme  court  of  the 
United  States  reversed  this  action  say- 
ing: "The  court  below  had  juris- 
diction to  issue  the  writ  and  to  de- 
cide the  questions  which  were  argued 
before  it.  Ex  parte  Eoyall,  117  U. 
S.  241,  6  Sup.  Ct.  Kep.  734,  29  L. 
ed.  868;  Whitten  v.  Tomlinson,  160 
U.  S.  231,  16  Sup.  Ct.  Kep.  297, 
40  L.  ed.  406.  In  the  latter  case 
most  of  the  prior  authorities  are  men- 
tioned. From  these  cases  it  clearly 
appears,  as  the  settled  and  proper 
procedure,  that  while  Circuit  Courts 
of  the  United  States  have  jurisdic- 
tion, under  the  circumstances  set  forth 
in  the  foregoing  statement,  to  issue 
the  writ  of  habeas  corpus,  yet  those 
courts  ought  not  to  exercise  that  ju- 
risdiction by  the  discharge  of  a  pris- 
oner unless  in  cases  of  peculiar  ur- 
gency; and  that  instead  of  discharg- 
ing they  will  leave  the  prisoner  to 
be  dealt  with  by  the  courts  of  the 


State;  that  after  a  final  determina- 
tion of  the  case  by  the  state  court, 
the  Federal  courts  will  even  then  gen- 
erally leave  the  petitioner  to  his  rem- 
edy by  writ  of  error  from  this  court. 
The  reason  for  this  course  is  apparent. 
It  is  an  exceedingly  delicate  jurisdic- 
tion given  to  the  Federal  courts  by 
which  a  -person  under  an  indictment 
in  a  state  court  and  subject  to  its 
laws  may,  by  the  decision  of  a  single 
judge  of  the  Federal  court,  upon  a 
writ  of  habeas  corpus,  be  taken  out  of 
the  custody  of  the  officers  of  the  State 
and  finally  discharged  therefrom,  and 
thus  a  trial  by  the  state  courts  of  an 
indictment  found  under  the  laws  of  a 
State  be  finally  prevented.  Cases 
have  occurred  of  so  exceptional  a 
nature  that  this  course  has  been  pur- 
sued. Such  are  the  cases  In  re  Loney, 
134  U.  S.  372,"  10  Sup.  Ct.  Eep.  584, 
33  L.  ed.  949,  and  In  re  Neagle,  135 
U.  S.  1,  10  Sup.  Ct.  Eep.  658,  34 
L.  ed.  55,  but  the  reasons  for  the 
interference  of  the  Federal  court  in 
each  of  those  cases  were  extraordin- 
ary, and  presented  what  this  court 
regarded  as  such  exceptional  facts  as 
to  justify  the  interference  of  the  Fed- 
eral tribunal.  Unless  this  case  be  of 
such  exceptional  nature,  we  ought  not 
to  encourage  the  interference  of  the 
Federal  court  below  with  the  regular 
course  of  justice  in  the  state  court. " 
In  Minnesota  v.  Brundage,  180  U. 
S.  499,  503,  21  Sup.  Ct.  Eep.  455,  45 
L.  ed.  639,  the  court,  after  referring 
to  cases  that  are  exceptions  to  the 
general  rule,  said:  "The  present  case 
does  not  come  within  any  of  the  ex- 
ceptions to  the  general  rule  announced 
in  the  cases  above  cited.  It  is  not, 


395  CONSUL  MAY  APPEAL.  [§§    355,    356 

treaty  will  have  no  effect  on  the  power  of  the  supreme  court  of 
the  United  States  to  review  the  judgment  if  the  determination 
of  the  case  depends,  in  part,  on  the  construction  of  the  treaty.191 

§  355.  Consul  may  appeal. — Upon  a  complaint  made  by  the 
Mexican  consul  under  oath,  certain  persons  were  committed 
for  extradition  to  Mexico.  They  applied  for  a  writ  of  habeas 
corpus,  and  they  were  granted  a  discharge  on  the  ground  that 
the  offenses  with  which  they  were  charged  were  political.  The 
consul  took  an  appeal  to  the  supreme  court  of  the  United  States, 
and  the  question  was  raised  that  he  was  not  the  real  party  inter- 
ested, but  the  court  held  that  he  might  properly  prosecute  the 
appeal,  as  the  government  of  Mexico  was  the  real  party  inter- 
ested.192 

§  356.  Conflicting  evidence. — Although  the  evidence  placed 
before  the  commissioner  may  be  conflicting  and  far  from  produc- 
ing conviction,  the  court  will  not,  on  habeas  corpus,  review  the 
decision  reached  by  him.193  Writs  of  habeas  corpus  cannot  put 
an  end  to  proceedings  for  extradition  regularly  and  constitu- 

in   any   legal   view,    one    of   urgency.  case    could   be    brought    here    for   re- 

The  accused  does  not,  in  his  applica-  view." 

tion,  state  any  reason  why  he  should  191  Rice  v.  Ames,  180  U.  S.  371,  21 

not  be  required  to  bring  the  question  Sup.    Ct.    Rep.    406,    45   L.    ed.    577; 

involved    in    the    prosecution    against  Pe«it  v.  Walshe,   194  U.  S.  205,   24 

him  before  a  higher  court  of  the  State  SuP-    Ct-    EeP-    657>    48    L-    ed-    938- 

and  invoke  its  power  to  discharge  him  The  fifth  section  of  the  act  of  1891 

if   in  its   judgment   he   is   restrained  Permits  an  aP?eal  &**<**  from  the 

of  his  liberty  in  violation  of  the  Con-  dlstrict  court  to  the  8uPreme  court  of 

stitution    of    the    United    States.     It       *?**?*•    States.  "in.  ^   case   in 

which  the  constitutionality  of  any  law 

cannot    be    assumed    that    the    state         „  ,.      TT  .,    „   „, 

of  the  United  States,  or  the  validity 

court    will    hesitate    to    enforce    any       ^   construction   of   any   treaty   ma/e 

rights  secured  to  him  by  that  instru-  under  itg  authorityj  is  drawn  in  queg. 

ment;  for  upon  them  equally  with  the  tion  ,,     26    stats>    at   Larg6j    82g> 

courts   of   the   Union   rests   the   duty  102  Qrnelas  v.  Euiz,  161  U.  S.  502, 

to  maintain  the  supreme  law  of  the  16  Sup>  ct  Eep    689>  40  L    ed    789' 

land.     Eobb    v.    Connolly,    111    U.    S.  See,    also,    Mali    v.    Hudson    County 

624,  637,  4  Sup.  Ct.  Rep.  544,  28  L.  Common   Jailkeeper,   120   U.   S.    1,   7 

ed.  542.     If  the  state  court  declined  Sup.  Ct.  Rep.  385,  30  L.  ed.  565. 

to    recognize    the   Federal   right    spe-  193  Sternaman  v.  Peck,  80  Fed.  883, 

cially    claimed    by    the    accused,    the  26  C.  C.  A.  214. 


§§    357,    358]       TREATIES  OF  EXTRADITION  AND  PROCEEDINGS.  396 

tionally  taken  under  acts  of  Congress.194  If  the  committing  mag- 
istrate had  competent  evidence  before  him,  and  possessed  juris- 
diction, his  decision  cannot  be  reviewed  on  an  application  for  a 
writ  of  habeas  corpus  on  the  ground  that  further  evidence  can  be 
obtained.195 

§  357.     Surrender  of    fugitive    an    executive  function. — The 

treaty-making  power,  and  the  power  of  appointing  and  receiving 
ambassadors  and  other  public  ministers,  clearly  includes  the 
pOAver  to  surrender  a  fugitive  to  another  nation.  "Its  exercise 
pertains  to  public  policy  and  governmental  administration,  is 
devolved  on  the  executive  authority,  and  the  warrant  of  sur- 
render is  issued  by  the  Secretary  of  State  as  the  representative  of 
the  President  in  foreign  affairs."196  The  President  may  author- 
ize the  employment  of  counsel  by  the  United  States  in  behalf  of 
marshals  of  the  United  States  against  whom  suits  are  brought  for 
lawful  acts  done  by  them  in  the  extradition  of  fugitives  from 
justice,197  and  although  the  accused  has  been  remanded  on  habeas 
corpus,  the  President,  if  he  is  of  the  opinion  that  the  evidence 
produced  is  not  sufficient  to  justify  the  issuance  of  a  wrarrant  of 
surrender,  may  refuse  the  surrender.198  Consuls  of  the  United 
States  possess  no  authority  to  require  masters  of  American  ves- 
sels to  take  on  board  and  carry  to  the  United  States  persons  who 
are  accused  of  crime.199  The  Revised  Statutes  limits  the  time  to 
two  calendar  months  from  his  commitment  by  a  magistrate  for 
taking  a  prisoner  out  of  the  United  States,?00  and  the  Department 
of  State  cannot  extend  this  time.201 

§  358.     Surrender  upon  different  charge. — There  is  no  author- 
ity in  the  President  to  surrender  a  fugitive  upon  any  charge 

194  Terlindeu  v.   Ames,    184    U.   S.       270,  22  Sup.  Ct.  Kep.  484,  46  L.  ed. 
270,  290,  22  Sup.  Ct.  Kep.  484,  46  L.       534. 

ed.  534.  "7  Gushing,  6  Op.  Atty.  Gen.  500. 

195  Rex   v.    Governor   of   Holloway  198  Mr.  Bayard,  Secretary  of  State, 
Prison,  87  L.  T.  332,   71  Law  J.  K.  to    Mr.    West,     April    15,    1886,    MS. 
B.  935.     See,  also,  when  it  was  held  Notes  to  Great  Britain,  XX,  233. 
that  where  the  commissioner  has  ju-  199  Gushing,  7  Op.  Atty.  Gen.   722. 
risdiction    to    investigate,    it   is    im-  20°  Rev.  Stats.,  sec.  5273. 

proper   to    treat    his   warrant   of   re-  2°l  Mr.   Olney,  Secretary  of  State, 

maud  as  a  nullity,  United  States  v.  to   Messrs.   Inghain   &   Hewitt,   May 

Gaynor,  L.   R.   App.   Gas.    128.  11,  1896,  210  MS.  Com.  Let.  94. 

196  Terlinden   v.    Ames,    184    U.    S. 


397  REFUSAL  TO  SURRENDER.  [§  359 

other  than  the  one  which  a  committing  magistrate  has  heard  and 
certified  to  be  sustained  by  the  evidence.202  The  warrant  of  the 
Secretary  of  State  directing  the  surrender  of  a  fugitive  from 
justice  is  subject  to  the  power  of  the  courts  of  the  United  States 
to  hold  him  for  trial  for  any  charge  which  may  be  pending  in  the 
United  States  against  him.203  There  must  be  a  certificate  of 
criminality  by  the  courts  before  the  President  can  order  the 
extradition.204  If  extradition  is  sought  on  two  charges  made  in 
two  different  states,  it  is  preferred  that  precedence  should  be 
given  to  the  requisition  based  on  the  charge  first  presented  by 
the  United  States.205 

A  government  is  not  obligated  to  surrender  a  person  held  on 
a  charge  of  crime  committed  within  its  own  jurisdiction,  and 
accordingly  the  attorney  general  of  the  United  States  directed 
that  certain  persons  charged  with  the  fraudulent  use  of  the  mails 
should  be  detained  for  trial  instead  of  delivering  them  to  an  officer 
to  be  taken  for  examination  for  extradition  on  a  charge  of  fraud 
committed  in  England.206 

§  359.  Refusal  to  surrender. — It  is  not  a  ground  for  declining 
to  surrender  the  accused  that  the  persons  directly  injured  have 
condoned  the  offense.207  The  United  States  cannot  refuse  to  sur- 
render a  fugitive  to  Mexico  because  he  subsequently  rendered 
services  to  the  government  in  assisting  to  apprehend  and  bring 
to  justice  his  associates,  as  the  surrender  of  fugitives  under 
treaties  of  extradition  is  a  matter  of  law,  and  no  plea,  unless  it 
be  a  legal  one,  can  be  entertained  to  prevent  the  surrender.208 

202  Mr.  Elaine,  Secretary  of  State,  206  Mr.    Hay,    Secretary    of    State, 
to    Sir   J.   Pauncefote,   British    Min-  to    Sir   ,T.    Pauncefote,    British    Am- 
ister,   May   17,    1892,   MS.   Notes   to  bassador,  No.  1336,  February  4,  1889, 
Great  Britain,  XXI,  664.  MS.   Notes   to   British   Leg.,   XXIV, 

203  Mr.      Gresham,      Secretary      of  435. 

State,  to  Mr.  Komero,  Mexican  Min-  207  Mr.  Olney,  Secretary  of  State, 

ister,    May   15,   1893,  MS.   Notes  to  to     Mr.     Townsend,     November     13, 

Mexico,  IX,  66.  1896,  213  MS.  Dom.  Let.  680. 

204  Gushing,  6  Op.  Atty.  Gen.  217.  208  Mr.      Eockhill,      Secretary     of 
203  Mr.    Hay,    Secretary    of    State,  State,    to     Mr.     Sanchez,    July    13, 

t<-  Messrs.  Kingsford  and  Son,  Feb-       1896,  211  MS.  Dom.  Let.  315. 

ruary  25,   1899,  235  MS.  Dom.  Let. 

152. 


§§    360-362]       TREATIES    OF    EXTRADITION    AND    PROCEEDINGS.  398 

§  360.  Release  of  debtor  in  jail  under  civil  process. — Section 
753  of  the  Eevised  Statutes  of  the  United  States  provides  that 
"the  writ  of  habeas  corpus  shall  in  no  case  extend  to  a  prisoner 
in  jail  unless  where  he  is  in  custody  ....  in  violation  of  the 
Constitution  or  of  a  law  or  treaty  of  the  United  States."  This 
section,  however,  will  not  prevent  the  release  on  habeas  corpus 
of  a  debtor  who  is  in  jail  under  executions  in  civil  actions,  for  the 
purpose  of  bringing  him  before  a  commissioner  for  examination. 
In  such  case  the  debtor  is  not  confined  in  jail  at  the  suit  of  the 
state,  but  of  his  creditors.  A  deputy  marshal  holding  a  com- 
missioner's warrant  for  the  arrest  of  a  debtor  on  proceedings 
in  extradition  has  an  interest  in  the  liberty  of  the  debtor  to  an 
extent  sufficient  to  authorize  him  to  apply  for  the  debtor 's  release 
on  habeas  corpus.2®9  "This  treaty  is  a  part  of  the  criminal  law  of 
the  land.  This  prisoner  is  charged  with  a  crime  in  another  coun- 
try, but  the  consideration  for  surrender  is  assistance  in  enforcing 
the  criminal  laws  of  this  country.  If  arrest  on  civil  process  would 
prevent  extradition,  a  safe  asylum  for  fugitives  from  justice  could 
be  easily  proved. ' '  21° 

§  361.  Delivery  within  two  months  after  commitment. — Sec- 
tion 5273  of  the  Revised  Statutes  of  the  United  States  provides 
that  if  a  person  committed  for  extradition  is  not  delivered  up 
and  conveyed  out  of  the  United  States  within  two  calendar 
months  after  such  commitment  over  the  time  actually  necessary 
to  convey  the  prisoner  from  the  jail  to  which  he  was  committed 
by  the  readiest  way  out  of  the  United  States,  any  federal  judge 
may,  upon  a  proper  showing  and  notice,  order  the  person  so  com- 
mitted to  be  discharged  from  custody,  unless  sufficient  cause  is 
shown  why  an  order  of  discharge  should  not  be  made.  It  is 
no  answer  to  such  an  application  that  an  officer  from  the  country 
seeking  extradition  is  on  his  way  to  remove  the  prisoner,  where 
the  officer  might,  with  the  exercise  of  reasonable  diligence,  have 
been  present  before  the  making  of  the  application,  and  no  suffi- 
cient cause  is  shown  for  his  delay.211 

§  362.  Transit  across  the  United  States. — The  conveyance  of 
a  prisoner  of  one  nation  across  the  territory  of  another  is  con- 

209  In   re   Mineau,   45   Fed.    188.  m  In  re  Dawson,  101  Fed.  253. 

210  In  re  Mineau,  45  Fed.  190.     See, 
also,  Moore  on  Extradition,  sec.  370. 


399  RESTORATION  OF  PROPERTY.  [§  363 

trary  to  the  principles  of  international  comity.  In  a  case  where 
a  request  was  made  by  Canada  for  permission  to  bring  a  fugitive 
criminal  from  the  West  Indies  to  Toronto,  through  the  territory 
of  the  United  States,  the  Department  of  State  declared:  "There 
is  no  law  of  Congress  authorizing  the  President  or  this  Depart- 
ment to  give  the  permission  which  the  Canadian  authorities  re- 
quest, and  such  permission,  even  if  granted,  could  not  avail  to 
prevent  the  courts,  upon  the  landing  of  the  fugitive  upon  Amer- 
ican soil,  from  releasing  him  by  the  writ  of  habeas  corpus."212 
President  Cleveland,  in  his  annual  message  of  December  6,  1886, 
suggested  that  the  statutes  regulating  extradition  might  be  ad- 
vantageously amended  by  providing  for  the  transit  across  Ameri- 
can territory  of  fugitives  surrendered  by  a  foreign  government 
to  a  third  state,213  and  President  McKinley,  in  1898,  made  a  sim- 
ilar recommendation.214 

§  363.  Restoration  of  property. — Under  the  general  usage  of 
extradition,  where  property  is  found  on  a  fugitive  at  the  time  of 
his  arrest,  if  it  appears  that  it  was  secured  by  the  crime  with 
which  he  is  charged,  or  if  it  is  required  as  part  of  the  evidence  of 
the  crime,  it  generally  is  turned  over  with  the  person  surrendered. 
But  if  money  taken  from  a  prisoner  presumptively  belongs  to  him, 
it  should  be  transferred  under  such  conditions  as  will  insure  its 
return  to  him  if  it  should  finally  transpire  that  it  was  his  right- 
ful property.215 

The  customs  authorities  seized  certain  jewels  that  were  brought 
into  the  United  States  in  violation  of  the  revenue  laws.  They 
were  stolen  from  the  Princess  of  Orange,  and  the  attorney  gen- 
eral of  the  United  States  advised  that  as  the  person  who  had 
brought  them  into  this  country  had  obtained  them  fraudulently, 
against  the  will  and  without  the  knowledge  of  the  owner,  and  as 
she  had  done  nothing  to  subject  them  to  forfeiture,  they  were  not 
liable  to  condemnation.  In  law,  he  held,  they  stood  on  the  same 
footing  as  if  they  had  been  cast  upon  the  shore  by  the  force  of 
the  winds  and  waves.  No  other  claimant  for  the  property  ap- 

212  Mr.     Strobel,    Third    Assistant  to  Mr.  Forman,  February  20,   1894, 

Secretary  of  State,  to  Mr.  Coppinger,  195  MS.  Dom.  Let.  520. 
Consul  at  Toronto,  No.  9,  February  *»  For.  Eel.  1886,  XL 

20,  1894,  144  MS.  Inst.  Consuls,  411;  S14  For.  Eel.  1898,  LXXIX. 

Mr.  Uhl,  Acting  Secretary  of  State,  215  Knox,  23  Op.  Atty.  Gen.  535. 


§§    364,    365]       TREATIES  OF  EXTRADITION  AND   PROCEEDINGS.  400 

peared,  and  as  there  was  sufficient  evidence  that  they  were  the 
property  of  the  princess,  the  attorney  general  advised  that  the 
President  might  order  the  attorney  for  the  United  States  to  dis- 
continue the  prosecution,  and  might  direct  the  marshal  in  whose 
custody  the  jewels  were  to  deliver  them  to  the  Minister  of  the 
Netherlands.216 

§  364.  Expenses  of  extradition. — The  demanding  government 
should  pay  the  expenses  of  extradition,  including  counsel  fees.217 
A  stipulation  in  a  treaty  that  the  " party"  who  makes  the  requisi- 
tion and  receives  the  fugitive  shall  bear  the  expenses,  means  the 
party  to  the  treaty,  and  not  the  individual  officer  or  authority  of 
the  government  making  the  demand.218  If,  however,  a  fugitive 
is  charged  with  an  offense  against  the  laws  of  a  particular  state, 
and  extradition  is  demanded  at  the  request  of  the  state  authori- 
ties, the  expenses  are  borne  by  the  state  requesting  the  surren- 
der of  the  fugitive.219  If  the  offense  is  against  the  laws  of  a 
territory,  the  expenses  must  be  borne  by  the  territor}^220 

§  365.  Expenses  of  district  attorney. — Where  the  statute  of  a 
state  makes  it  the  duty  of  a  district  attorney  to  conduct  the 
prosecution  of  crimes,  he  is  entitled  to  reimbursement  for  expenses 
which  he  has  necessarily  incurred  in  obtaining  the  extradition 
from  a  foreign  country  of  a  fugitive  from  justice ; 221  and  a  stat- 
ute declaring  it  to  be  a  misdemeanor  for  any  officer  of  the  state 
to  request  or  receive  any  fee  or  compensation  for  services  or 
expenses  in  procuring  from  the  governor  of  a  state  a  demand 
for  the  extradition  of  a  fugitive  from  justice  does  not  extend  to 
expenses  of  a  district  attorney  in  procuring  the  extradition  of  a 
fugitive  from  a  foreign  country.222 

216  Taney,  2  Op.  Atty.  Gen.  482.  gust   21,    1875,    109    MS.    Dom.    Let. 

217  Gushing,  7  Op.  Atty.  Gen.  396.  489. 

218  People  v.  Board  of  Supervisors,  221  People  v.  Board  of  Supervisors, 
56  Hun,  17,  8  N.  Y.  Supp.  752.  56  Hun,  17,  8  N.  Y.  Supp.  752. 

219  jy£r     pigh^    Secretary    of    State,  "2  People    v.    Supervisors,    134    N. 
to   Mr.   Harvey,  June   18,   1874,   102  Y.   1,  31  N.  E.  322;   Ellis  v.  Jacob, 
MS.  Dom.  Let.  458.  45   N.    Y.    Supp.    177,    17    App.   Div. 

220  Mr.    Cadwalader,     Acting    Sec-  471. 
retary  of   State,   to  Mr.  Ferry,  Au- 


401  METHOD    FOR    PAYMENT    OF    EXPENSES.       [§§    366,    367 

§  366.  Method  for  payment  of  expenses. — The  method  fol- 
lowed for  the  payment  of  expenses  is  for  the  commissioner  who 
has  heard  the  case  to  send  to  the  Department  of  State  a  state- 
ment of  costs  including  the  expenses  incurred  by  the  marshal  in 
paying  the  fees  of  witnesses,  and  thereupon  money  is  transmitted 
to  the  marshal  for  the  payment  of  the  fees,  or,  if  he  has  paid 
them,  for  his  reimbursement.223  A  statute  of  a  state  which  im- 
poses on  a  county  in  which  it  is  charged  the  offense  has  been 
committed  the  expense  of  returning  from  another  state  a  fugitive 
from  justice  does  not  apply  to  a  case  where  a  fugitive  is  brought 
back  from  a  foreign  country.224 

It  is  held  by  the  Department  of  State  that  it  is  the  duty  of  the 
demanding  government  to  adduce  the  evidence  which  it  expects 
to  establish  the  criminality  of  the  accused,  and  this  must  be  done 
in  such  form  and  language  as  will  be  intelligible  to  and  con- 
venient for  the  court,  and  therefore,  that  a  bill  for  the  services 
of  a  translator  is  no  proper  part  of  the  expenses  of  extradition.225 
If  the  United  States  is  forced  to  intervene  in  a  conflict  between 
the  authorities  of  a  state  and  those  of  the  United  States  to  main- 
tain its  supremacy  and  secure  the  extradition,  the  special  ex- 
penses should  be  paid,  in  the  first  instance,  at  least,  by  the  United 
States.226  A  commissioner  or  marshal  may  lawfully  charge  such 
fees  as  are  usual  for  analogous  services  rendered  to  the  United 
States.227 

§  367.  Deserting  seamen. — The  United  States  authorities  can- 
not, in  the  absence  of  a  treaty  stipulation,  surrender  deserting 
seamen.228  The  Revised  Statutes  provide  for  the  delivery  up  of 
deserting  seamen  to  the  consul  or  vice-consul  of  countries  having 

-::  Mr.  Olney,  Secretary  of  State,  of     Canadian     commissioners     were 

to  Messrs.  Joske  Brothers,  June  20,  twenty  dollars  per  day,  it  would  not 

1895,   202  MS.  Dom.  Let.   691.  be    proper    to    refuse    to    pay    them. 

224  Goldfon    v.    Allegheny    County,  Mr.  Gresham,  Secretary  of  State,  to 
14  Pa.  Super.  Ct.  75.  Mr.  Ilensel,  April  25,  1894,  196  MS. 

225  Mr.      Frelinghuysen,     Secretary  Dom.  Let.   482. 

of  State,  to  Mr.  Patterson,  April  2,  ~6  Cushing,  7  Op.  Atty.  Gen.  396. 

1884,  150  MS.  Dom.  Let.  448.     The  22T  Black,  9  Op.  Atty.  Gen.  497. 

Department   of  State   expressed  the  22S  Tucker  v.   Alexandroff,    183   U. 

opinion  that  where  it  appeared  that  S    424,  22  Sup.   Ct.  Eep.   195,  46  L. 

the     customary     per     diem     charges  ed.   264. 
Treaties — 26 


§    368]  TREATIES  OF  EXTRADITION  AND  PROCEEDINGS.  402 

appropriate  treaties.229  It  would  seem  that  no  obligation  is  im- 
posed by  the  Revised  Statutes,  or  the  British  merchant  shipping 
act,  or  the  treaty  stipulations  between  the  United  States,  on  the 
one  hand ,-  and  Great  Britain  and  Sweden  and  Norway  on  the 
other,  on  the  master  of  a  foreign  vessel,  or  on  the  consuls  of  the 
foreign  governments,  to  make  arrests  or  reclamations  of  deserters 
for  the  protection  of  the  country  in  which  the  desertions  are 
made.  These  provisions  seem  to  be  intended  for  the  benefit  of 
the  shipmaster,  who  may  exercise  his  discretion  in  making  or 
not  making  reclamation.230  In  1901,  and  also  in  1902,  complaint 
was  made  by  the  German  government  that  the  object  of  the  con- 
sular convention  of  December  11,  1871,  was  defeated  by  ship- 
ping commissioners,  particularly  by  those  of  Portland  and  San 
Francisco,  who  required  proof  that  the  person  claimed  to  be  a 
deserter  was  a  member  of  the  crew,  and  also,  who  required  it  to 
be  shown  that  the  offense  stated  by  the  consul  in  his  applica- 
tion for  arrest  had  actually  been  committed,  following  the  pro- 
cedure in  extradition  cases.  This  complaint  was  referred  to  the 
attorney  general,  who  rendered  an  opinion  to  the  effect  that  this 
course  was  justified  by  section  5280  of  the  Revised  Statutes, 
which  was  designed  to  effectuate  treaty  stipulations  for  the  re- 
turn of  deserters,  and  that  the  practice  was  not  at  variance  with 
the  treaty,  and  advised  that  the  consul  should  seek  a  decision  of 
the  point  raised  by  some  competent  court.231 

§  368.  Gradual  extension  of  list  of  crimes  included  in  treaties. 
No  attempt  has  been  made  in  the  preceding  sections  to  enumerate 
all  the  crimes  for  which  extradition  may  be  had,  as  these  are  not 
the  same  in  all  treaties,  but  the  treaties  with  the  different  nations 
vary  in  this  respect.  The  first  treaty  providing  for  the  extra- 
dition of  criminals  was  that  entered  into  with  Great  Britain  in 
1794,  which  included  as  extraditable  offenses  only  murder  and 
forgery.  Gradually  the  list  has  been  extended,  but  in  the  treaties 
with  some  countries  certain  crimes  are  mentioned,  while  no  refer- 
ence is  made  to  them  in  others.  For  instance,  the  crime  of  em- 
bezzlement is  in  some  treaties  an  extraditable  offense,  and  in 
others  not.  It  may  also  be  observed  that  in  the  extradition  treaty 

229  Rev.   Stats.,  sec.   5280.  June    18,   1898,   229   MS.   Dom.   Let. 

230  Mr.    Hay,    Secretary  of    State,       42L 

to   the   Secretary   of  the     Treasury,  **  For.  Eel.  1903,  411-417. 


403  REGULATIONS  OF  STATE  DEPARTMENT.          [§  369 

with  Belgium  concluded  October  26,  1901,  one  of  the  crimes  for 
which  extradition  may  be  had  is:  "Obtaining  money,  valuable 
securities,  or  other  property  by  false  pretenses,  when  such  an  act 
is  made  criminal  by  the  laws  of  both  countries,  and  the  amount 
of  the  money  or  the  value  of  the  property  fraudulently  obtained 
is  not  less  than  two  hundred  dollars,  or  one  thousand  francs." 
In  the  treaty  with  Denmark  concluded  January  6,  1902,  among  the 
extraditable  crimes  enumerated  is:  "Obtaining  money,  valuable 
securities,  or  other  property  by  false  pretenses,  or  receiving 
money,  valuable  securities,  or  other  property,  knowing  the  same 
to  have  been  embezzled,  stolen  or  fraudulently  obtained,  when 
such  act  is  made  criminal  by  the  laws  of  both  countries,  and  the 
amount  of  money  or  the  value  of  the  property  fraudulently  ob- 
tained or  received  is  not  less  than  $200,  or  kroner  740."  In 
other  extradition  treaties  offenses  of  this  character  are  not 
mentioned  at  all.  Bribery,  which  is  generally  not  an  extraditable 
offense,  has  been  made  extraditable  by  recent  treaties  with  Mexico 
and  the  Netherlands.  Therefore,  in  any  given  case,  the  treaty  it- 
self should  be  consulted  to  determine  what  crimes  are  included,  as 
the  matter  is  purely  one  of  treaty  regulation. 

•  §  369.  Regulations  of  State  Department. — The  State  Depart- 
ment has  made  regulations  for  the  issuance  of  requisitions  to 
secure  the  extradition  of  fugitives  from  justice.  All  applica- 
tions should  be  addressed  to  the  Secretary  of  State,  and  be 
accompanied  by  the  necessary  papers.  The  application  must 
come  from  the  governor  of  a  state  or  territory  when  the  extra- 
dition is  sought  for  an  offense  within  the  jurisdiction  of  the 
state  or  territorial  courts,  and  from  the  attorney,  general  when 
the  offense  is  against  the  United  States.  The  instructions  issued 
by  the  Department  of  State  will  be  found  in  the  appendix.232 

232  See  Appendix,    I. 


§    370]  TREATIES    WITH    INDIANS.  404 


CHAPTER  XII. 

TREATIES    WITH-  INDIANS. 

§  370.  Treaties    with    Indians. 

§  371.  Dawes  Commission. 

§  372.  Eeport    of    commission. 

§  373.  Further  legislation. 

§  374.  Tribe  party  to  suit. 

§  375.  Appeals  to   the  supreme  court. 

§  376.  Constitutionality  of  legislation. 

§  377.  Indian  treaties  prior  to  legislation. 

§  378.  Eelinquishment  by  Great  Britain. 

§  379.  Indian  right  of  occupation. 

§  380.  Cutting  timbers  by  Indians. 

§  381.  Title  of  United  States  devested  by  patent. 

§  382.  Abandonment  of  possession  by  Indians. 

§  383.  Treaty-making  power  may  dispose  of  government's  title. 

§  384.  Indian  nation  not  a  foreign  state. 

§  385.  General  acts  of  Congress  not  applicable  to  Indians. 

§  386.  Indians   becoming   citizens. 

§  387.  Policy  of  the  United  States. 

§  388.  Effect    of    treaties   with    Indians. 

§  389.  Eecognition   of   executive   department   followed  by   courts. 

§  390.  Liberal  construction  of  treaties. 

§  391.  May  be  controlled  by  legislation. 

§  392.  Technical  meaning  of  treaties  not  to  be  considered. 

§  393.  Indian  tribe  not  a  sovereign   nation. 

§  370.  Treaties  with  Indians. — The  Constitution  confers  upon 
Congress  the  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  states  and  with  the  Indian  tribes.1  But, 
beginning  with  the  administration  of  Washington,  and  continu- 
ing to  the  year  1871,  it  had  been  the  practice  of  the  government 
to  enter  into  treaties  with  the  various  Indian  tribes.  In  1789 
President  Washington  sent  a  message  to  the  Senate,  in  which  he 
stated  that  it  was  the  general  understanding  and  practice 
of  nations  not  to  consider  any  treaty  as  final  and  conclusive  un- 
til ratified  by  the  sovereign  or  government  from  whom  the  com- 
missioners signing  the  treaty  derived  their  powers.  "This  prac- 
tice," said  he,  "has  been  adopted  by  the  United  States  respect- 

1  Const.,  art.  I,  see.  8,  cl.  3. 


405  DA  WES  COMMISSION.  [§    371 

ing  their  treaties  with  European  nations,  and  I  am  inclined  to 
think  it  would  be  advisable  to  observe  it  in  the  conduct  of  our 
treaties  with  the  Indians ;  for  though  such  treaties  being,  on  their 
part,  made  by  their  chiefs  or  rulers,  need  not  be  ratified  by  them, 
yet  being  formed  on  our  part  by  the  agency  of  subordinate  offi- 
cers, it  seems  to  be  both  prudent  and  reasonable  that  their  acts 
should  not  be  binding  on  the  nation  until  approved  and  ratified 
by  the  Government.  It  strikes  me  that  this  point  should  be  well 
considered  and  stated,  so  that  our  national  proceedings  in  this 
respect  may  become  uniform  and  be  directed  by  fixed  and  stable 
principles."-  In  1871,  a  law  was  enacted  that  "No  Indian  na- 
tion or  tribe  within  the  territory  of  the  United  States  shall  be 
acknowledged  or  recognized  as  an  independent  nation,  tribe,  or 
power  with  whom  the  United  States  may  contract  by  treaty. ' ' 3 
In  some  instances,  although  the  states  are  not  permitted  to  make 
treaties,  they  did  enter  into  treaties  with  Indian  tribes  occupy- 
ing land  within  their  limits.4 

§  371.  Dawes  Commission. — In  the  act  making  appropriations 
for  current  and  contingent  expenses,  and  fulfilling  treaty  stipu- 
lations with  Indian  tribes  for  the  fiscal  year  ending  June  30, 
3894,  Congress  provided  for  a  commission  for  the  purpose  of  ex- 
tinguishing the  national  or  tribal  title  to  any  lands  held  by  cer- 
tain Indian  tribes,  with  a  view  to  such  adjustment  as  may  be 
requisite  and  suitable  to  enable  the  ultimate  creation  of  a  state 
or  states  of  the  Union  in  the  territory  in  which  such  lands  are 
situated.  This  commission  became  known  as  the  "Dawes  Com- 
mission" from  the  name  of  its  chairman,  Henry  L.  Dawes,  of 
Massachusetts.5 

2  1  Bichardson's  Messages,  61,  62.  treaty  between  state  of  Georgia  and 

3  16  U.  S.  Seals  at  Large,  566,  18  the    Creek    Nation,    7    U.    S.    Stats. 
Id.  176;  19  Id.  58;  Kev.  Stats.,  sec.  at  Large,  217;  and  as  to  treaty  be- 
2079.     But  it  was    declared  that  no  tween  the  Seneca  and  Tuscarora  In- 
obligation    of    any    treaty    lawfully  dians   and    individuals   for   the   sale 
made   and  ratified  with   any  Indian  of   lands,    7    U.    S.   Stats,    at   Large, 
nation    or   tribe   prior   to     March    3,  557,  559. 

1871,   should   be   invalidated    or   im-  3  27    U.    S. -Stats,    at    Large,    612, 

paired.  645.     The    section    bearing    on    this 

4  See   as   to    treaty   between   New  subject  is:   "Sec.  16.     The  President 
York    and    the    Mohawk   Indians,    7  shall  nominate  and,  by  and  with  the 
U.    S.    Stats,    at    Large,     61;    as    to  advice    and    consent    of    the    Senate, 


§  372] 


TREATIES  WITH  INDIANS. 


406 


§  372.  Report  of  commission. — In  their  report  of  November 
18,  1895,  the  commission  said  that  if  citizenship  should  be  left 
without  control  or  supervision  to  the  absolute  determination  of 
the  tribal  authorities,  with  power  to  decitizenize  at  will,  the  great- 
est injustice  would  be  perpetrated,  and  many  good  and  law-abid- 
ing citizens  reduced  to  beggary.  The  commission  felt  compelled 
to  report  that  so  long  as  power  in  these  nations  should  remain 


shall  appoint  three  commissioners  to 
enter,  into  negotiations  with  the 
Cherokee  Nation,  the  Choctaw  Na- 
tion, the  Chickasaw  Nation,  the 
Muscogee  (or  Creek)  Nation;  the 
Seminole  Nation,  for  the  purpose  of 
the  extinguishment  of  the  national 
or  tribal  title  to  any  lands  within 
that  Territory  now  held  by  any  and 
all  of  such  nations  or  tribes,  either 
by  cession  of  the  same  or  some 
part  thereof  to  the  United  States,  or 
by  the  allotment  and  division  of  the 
same  in  severalty  among  the  Indians 
of  such  nations  or  tribes,  respec- 
tively, as  may  be  entitled  to  the 
same,  or  by  such  other  method  as 
may  be  agreed  upon  between  the 
several  nations  and  tribes  aforesaid, 
or  each  of  them,  with  the  United 
States,  with  a  view  to  such  an  ad- 
justment, upon  the  basis  of  justice 
and  equity,  as  may,  with  the  consent 
of  such  nations  or  tribes  of  Indians, 
so  far  as  may  be  necessary,  be 
requisite  and  suitable  to  enable  the 
ultimate  creation  of  a  State  or 
States  of  the  Union  which  shall  em- 
brace the  lands  within  said  Indian 
Territory. 

"The  Commissioners  so  appointed 
shall  each  receive  a  salary,  to  be 
paid  during  such  time  as  they  may 
be  actually  employed,  under  direc- 
tion of  the  President,  in  the  duties 
enjoined  by  this  act,  at  the  rate  of 
five  thousand  dollars  per  annum, 
and  shall  also  be  paid  their  reason- 
able and  proper  expenses  incurred 


in  prosecution  of  the  objects  of  this 
act,  upon  accounts  therefor  to  be 
rendered  to  and  allowed  by  the 
Secretary  of  the  Interior  from  time 
t«  time.  That  such  commissioners 
shall  have  power  to  employ  a  sec- 
retary, a  stenographer,  and  such 
interpreter  or  interpreters  as  may 
be  found  necessary  to  the  perform- 
ance of  their  duties,  and  by  order 
to  fix  their  compensation,  which 
shall  be  paid,  upon  the  approval  of 
the  Secretary  of  the  Interior,  from 
time  to  time,  with  their  reasonable 
and  necessary  expenses,  upon  ac- 
counts to  be  rendered  as  aforesaid; 
and  may  also  employ,  in  like  man- 
ner, and  with  the  like  approval,  a 
surveyor  or  other  assistant  or  agent, 
which  they  shall  certify  in  writing 
to  be  necessary  to  the  performance 
of  any  part  of  their  duties. 

' '  Such  commissioners  shall,  under 
such  regulations  and  directions  as 
shall  be  prescribed  by  the  President, 
through  the  Secretary  of  the  In- 
terior, enter  upon  negotiation  with 
the  several  nations,  of  Indians  as 
aforesaid  in  the  Indian  Territory, 
and  shall  endeavor  to  procure,  first, 
such  allotment  of  lands  in  severalty 
to  the  Indians  belonging  to  each 
such  nation,  tribe,  or  band,  respec- 
tively, as  may  be  agreed  upon  as 
just  and  proper  to  provide  for  each 
such  Indian  a  sufficient  quantity  of 
land  for  his  or  her  needs,  in  such 
equal  distribution  and  apportion- 
ment as  may  be  found  just  and 


407 


REPORT   OF   COMMISSION. 


372 


in  the  hands  of  those  who  were  then  exercising  it,  any  further 
effort  to  induce  them  by  negotiation  to  agree  voluntarily  to  a 
change  restoring  to  the  people  the  benefit  of  the  tribal  property, 
and  assuring  them  that  security  and  order  in  government  enjoyed 
by  the  people  of  the  United  States  would  be  in  vain.  The  com- 
mission were  of  the  opinion  that  the  insecurity  of  life,  person  and 
property  increasing  every  day  made  immediate  action  imperative, 
and  that  "the  pretense  that  the  government  is  debarred  by  treaty 
obligations  from  interference  in  the  present  condition  of  affairs 
in  this  territory  is  without  foundation.  The  present  conditions 
are  not  'treaty  conditions.'  There  is  not  only  no  treaty  obliga- 
tion on  the  part  of  the  United  States  to  maintain,  or  even  to  per- 


suited  to  the  circumstances;  for 
which  purpose,  after  the  terms  of 
such  an  agreement  shall  have  been 
arrived  at,  the  said  commissioners 
shall  cause  the  lands  of  any  such 
nation  or  tribe  or  band  to  be  sur- 
veyed and  the  proper  allotment  to 
be  designated;  and,  secondly,  to 
procure  the  cession,  for  such  price 
and  upon  such  terms  as  shall  be 
agreed  upon,  of  any  lands  not  found 
necessary  to  be  so  allotted  or  di- 
vided, to  the  United  States;  and  to 
make  proper  agreements  for  the  in- 
vestment or  holding  by  the  United 
States  of  such  moneys  as  may  be 
paid  or  agreed  to  be  paid  to  such 
nation  or  tribes  or  bands,  or  to  any 
of  the  Indians  thereof,  for  the  ex- 
tinguishment of  their  claims  there- 
in. But  said  commissioners  shall, 
however,  have  power  to  negotiate 
any  and  all  such  agreements  as,  in 
view  of  all  the  circumstances  af- 
fecting the  subject,  shall  be  found 
requisite  and  suitable  to  such  an  ar- 
rangement of  the  rights  and  in- 
terests and  affairs  of  such  nations, 
tribes,  bands  or  Indians,  or  any  of 
them,  to  enable  the  ultimate  crea- 
tion of  a  Territory  of  the  United 
States  with  a  view  to  the  admis- 


sion of  the  same  as  a  state  in  the 
Union. 

"The  commissioners  shall  at  any 
time,  or  from  time  to  time,  report 
to  the  Secretary  of  the  Interior  their 
transactions  and  the  progress  of 
their  negotiations,  and  shall  at  any 
time,  or  from  time  to  time,  if  sepa- 
rate agreements  shall  be  made  with 
any  nation,  tribe  or  band,  in  pur- 
suance of  the  authority  hereby  con- 
ferred, report  the  same  to  the  Sec- 
retary of  the  Interior  for  submis- 
sion to  Congress  for  its  considera- 
tion and  ratification. 

"For  the  purposes  aforesaid  there 
is  hereby  appropriated  out  of  any 
money  in  the  Treasury  of  the  United 
States,  the  sum  of  fifty  thousand 
dollars,  to  be  immediately  available. 

1 '  Neither  the  provisions  of  this  sec- 
tion nor  the  negotiations  or  agree- 
ments which  may  be  had  or  made 
thereunder  shall  be  held  in  any  way 
to  waive  or  impair  any  right  of  sov- 
ereignty which  the  Government  of 
the  United  States  has  over  or  re- 
specting said  Indian  Territory  or 
the  people  thereof,  or  any  other 
right  of  the  Government  relating  to 
said  Territory,  its  lands,  or  the 
people  thereof.  Approved  March  3, 
1893." 


§    373]  TREATIES  WITH  INDIANS.  408 

mit,  the  present  condition  of  affairs  in  the  Indian  territory,  but, 
on  the  contrary,  the  whole  structure  and  tenor  of  the  treaties  for- 
bid it.  If  our  government  is  obligated  to  maintain  the  treaties  ac- 
cording to  their  original  intent  and  purpose,  it  is  obligated  to 
block  out  at  once  present  conditions.  It  has  been  most  clearly 
shown  that  a  restoration  of  the  treaty  status  is  not  only  an  impos- 
sibility, but  if  a  possibility,  would  be  disastrous  to  the  people  and 
governments  alike.  The  cry,  therefore,  of  those  who  have  brought 
about  this  condition  of  affairs  to  be  let  alone,  not  only  finds  no 
shelter  in  treaty  obligations,  but  is  a  plea  for  permission  to  fur- 
ther violate  those  provisions. ' '  6 

§  373.  Further  legislation. — The  commission  under  the  Indian 
appropriation  act  of  1896  was  directed  to  continue  to  exercise 
their  authority  and  to  endeavor  to  accomplish  the  objects  pre- 
scribed to  them,7  and  was  also  authorized  to  hear  and  determine 
the  application  of  all  persons  applying  for  citizenship,  and  they 
were  directed  in  determining  such  applications  to  respect  all  laws 
of  the  several  nations  or  tribes,  not  inconsistent  with  the  laws 
of  the  United  States,  "and  all  treaties  with  either  of  said  na- 
tions or  tribes,  and  shall  give  due  force  and  effect  to  the  rules, 
usages,  and  customs  of  each  of  said  nations  or  tribes."8  In 
1899,  a  United  States  court  was  established  with  a  single  judge, 
having  jurisdiction  over  the  Indian  territory,9  and  in  1890,  an 
act  was  passed  to  provide  a  temporary  government  for  the  ter- 
ritory of  Oklahoma,  and  to  enlarge  the  jurisdiction  of  the  court.10 
In  1895  two  additional  judges  were  provided  for  the  court,  who 
were  vested  with  all  the  authority,  both  in  term  time  and  in  vaca- 
tion, as  to  all  causes,  both  criminal  and  civil,  that  might  be 
brought  in  the  district.11  In  1897  a  provision  was  made  in  the 
Indian  appropriation  act  for  the  appointment  of  an  additional 

6  The         commissioner        reported  control    of     the     money    and     other 

further:   "The    commission    is    com-  property    of    Indian    citizens,    much 

pelled  by  the  evidence  forced  upon  less  their  lives,  which  they  scarcely 

them,  during  their  examination  into  pretend   to   protect. ' ' 

the   administration    of   the   so-called  "  29  Stats,  at  Large,  321,  329. 

government  in  this  territory,  to  re-  8  29  Stats,  at  Large,  321-329. 

port   that   these   governments   in   all  9  25   Stats,   at  Large,   783. 

their   branches    are    wholly    corrupt,  lft  26    Stats,    at   Large,    81,   93. 

irresponsible,    and    unworthy    to    be  n  28  Stats,  at  Large,  693. 
longer    trusted    with    the    care    and 


409  TRIBE  PARTY  TO  SUIT.  [§§  374.  375 

judge  for  the  United.  States  court,  and  further  powers  were  con- 
ferred upon  the  commission.1- 

§  374.  Tribe  party  to  suit. — In  1898  an  act  was  passed  provid- 
ing- that  when,  in  the  progress  of  any  civil  suit,  in  law  or  in 
equity,  pending  in  any  federal  court  in  any  district  in  the  ter- 
ritory, it  should  appear  to  the  court  that  the  property  of  any 
tribe  was  in  any  way  affected  by  the  issues  being  heard,  the 
court  was  authorized  and  required  to  make  the  tribe  a  party  to 
the  suit  by  service  upon  the  chief  or  governor  of  the  tribe,  and 
the  suit  should  thereafter  be  conducted  and  determined  as  if  the 
tribe  had  been  an  original  party  to  the  action.  By  this  act  fur- 
ther powers  were  also  conferred  upon  the  commission,  and  it  was 
declared  that  after  its  passage,  "the  laws  of  the  various  tribes 
or  nations  of  Indians  shall  not  be  enforced  at  law  or  in  equity 
by  the  courts  of  the  United  States,  in  the  Indian  territory, ' '  and 
that  after  a  fixed  date,  "all  tribal  courts  in  Indian  territory  shall 
be  abolished  and  no  officer  of  said  courts  shall  thereafter  have 
any  authority  whatever  to  do  or  perform  any  act  theretofore  au- 
thorized by  any  law  in  connection  with  said  courts,  or  to  receive 
any  pay  for  same;  and  all  civil  and  criminal  causes  then  pend- 
ing in  any  such  court  shall  be  transferred  to  the  United  States 
court  in  said  territory  by  filing  with  the  clerk  of  the  court  the 
original  papers  in  the  suit."  13 

§  375.  Appeals  to  the  supreme  court. — The  Indian  appropria- 
tion act  of  July  1,  1898,  provided  that  appeals  should  be  allowed 
from  the  United  States  courts  in  the  Indian  territory  direct  to  the 
supreme  court  of  the  United  States  to  either  party  "in  all  citi- 
zenship cases,  and  in  all  cases  between  either  of  the  Five  Civilized 
Tribes  and  the  United  States  involving  the  constitutionality  or 
validity  of  any  legislation  affecting  citizenship  or  the  allotment 
of  lands,  in  the  Indian  territory,  under  the  rules  and  regulations 
governing  appeals  to  said  court  in  other  cases, ' '  with  certain  limi- 
tations as  to  the  time  within  which  appeals  should  be  perfected. 
The  act  also  allowed  appeals  to  be  taken  in  cases  decided  prior 
to  the  passage  of  the  act.14  It  was  held  that  this  provision  was 
not  invalid,  because  it  was  retrospective,  nor  was  it  to  be  con- 

12  30  Stats,  at  Large,  84.  14  30  Stats,  at  Large,  571. 

13  30  Stats,  at  Large,  495. 


§§    376,    377]  TREATIES   WITH   INDIANS.  410 

sidered  as  invading  the  judicial  domain,  nor  as  destroying  vested 
rights,  because,  although  the  decrees  of  the  court  were  made 
iinal  by  statute,  still  the  expectation  of  a  share  in  the  public 
lands  and  money  of  the  tribe  could  not  be  considered  such  an 
absolute  right  of  property  as  to  prevent  under  subsequent  legis- 
lation the  review  of  these  decrees  by  a  higher  court.15 

§  376.  Constitutionality  of  legislation. — The  legislation  rela- 
tive to  the  Indian  tribes  was  challenged  as  in  conflict  with  trea- 
ties made  with  them.  The  court  said  that  it  was  well  settled 
that  an  act  of  Congress  may  supersede  a  prior  treaty,  and  that 
as  the  lands  and  money  of  these  tribes  are  public,  and  not  held  in 
individual  ownership,  the  acts  of  Congress  providing  for  the  de- 
termination of  citizenship  in  the  tribes  were  not  unconstitutional 
as  impairing  or  destroying  vested  rights.16  An  Indian  tribe  is 
capable,  under  the  terms  of  the  Constitution,  of  entering  into 
treaty  obligations  with  the  government  of  the  United  States,  al- 
though from  the  nature  of  the  case  such  tribe  is  subject  to  the 
authority  of  the  United  States  and  to  the  exercise  of  its  legisla- 
tive power.17 

§  377.  Indian  treaties  prior  to  legislation. — Prior  to  legisla- 
tion by  Congress  treaties  had  been  entered  into  with  numerous 
Indian  tribes.  When  this  continent  was  discovered,  the  nations 
of  Europe  were  desirous  to  appropriate  to  themselves  such  por- 
tions as  they  could  secure,  and  that  conflicting  claims  might  be 
harmonized  and  wars  averted,  it  was  determined  that  the  right 
of  acquisition,  as  between  themselves,  should  be  determined  by 
the  principle  of  discovery,  which  gave  title  to  the  government 
under  whose  authority  the  discovery  was  made  as  against  all 
other  European  governments.  Possession  would  consummate  the 
title  thus  commenced  by  discovery.  The  nation  making  the  dis- 
covery had  the  sole  right  of  acquiring  the  soil  from  the  natives 
and  establishing  settlements  upon  it,  and  to  the  assertion  of  this 
right  to  which  all  European  nations  gave  assent.  While  the 

15  Stephens  v.  Cherokee  Nation,  174  U.  S.  445,  19  Sup.  Ct.  Eep.  722, 
174  U.  S.  445,  19  Sup.  Ct.  Eep.  722,  43  L.  ed.  1041. 

43  L.  ed.   1041.  "  Choctaw      Nati°n     ^       United 

States,  119  U.  S.  1,  7  Sup.  Ct.  Rep. 

«  Stephens    v.    Cherokee    Nation, 


411  RELINQUISHMENT  BY  GREAT  BRITAIN.          [§§    378,    379 

rights  of  the  original  inhabitants  were  impaired  to  a  large  de- 
gree, they  were  not  completely  disregarded.  They  were  deprived 
of  their  rights  as  independent  nations  to  complete  sovereignty, 
but  it  was  conceded  that  they  were  rightful  occupants  of  the  soil, 
having  a  legal  as  well  as  just  claim  to  hold  its  possession.  As 
exclusive  title  was  given  to  those  who  made  discovery,  it  fol- 
lowed that  the  power  of  the  original  inhabitants  to  dis- 
pose of  the  soil  as  they  pleased  could  not  be  admitted.  The 
ultimate  dominion  was,  according  to  this  principle,  in  the  differ- 
ent nations  making  discovery.  By  virtue  of  this  dominion,  these 
nations,  while  respecting  the  rights  of  occupancy  of  the  natives, 
claimed  to,  and  did,  exercise  the  power  to  grant  the  soil,  and 
grants  made  by  them  have  been  universally  understood  as  con- 
veying a  title  to  the  grantee,  Subject  only  to  the  right  of  oc- 
cupancy on  the  part  of  the  Indians. 

§  378.  Relinquishment  by  Great  Britain. — Great  Britain,  in  the 
treaty  of  peace  at  the  conclusion  of  the  Revolution,  acknowledged 
the  United  States,  naming  the  respective  states  "to  be  free, 
sovereign  and  independent  states,"  and  "relinquishes  all  claim  to 
Government  Property  &  Territorial  Rights  of  the  same  &  every 
part  thereof, ' ' 18  and  the  states  thus  acquired  the  powers  of  gov- 
ernment and  the  right  to  the  soil  previously  existing  in  Great 
Britain.  The  exclusive  power  to  extinguish  the  Indian  right  of 
occupancy  was  vested  in  the  government,  having  for  the  time  be- 
ing the  constitutional  right  to  exercise  it.  Hence,  a  title  to  lands 
under  grants  to  private  individuals  made  by  Indian  tribes  or  na- 
tions cannot  be  recognized  in  the  courts  of  the  United  States.19 

§  379.  Indian  right  of  occupation. — A  grant  to  a  railroad  com- 
pany of  land  to  which  the  Indian  title  had  not  been  extinguished 
conveys  the  fee  to  the  company,  subject,  however,  to  the  right 
of  Indian  occupancy.  Private  parties  cannot  interfere  with  or 

18  Treaty    of    1783,  art.    1;    Comp.  34  Sup.  Ct.  Eep.  567,  38  L.  ed.  350. 
Treaties  in  Force,  293.  See,    also,    Case   v.    Toftus,    14    Saw. 

19  Johnson  v.  Mclntosh,  8  Wheat.  217,   39   Fed.    733,   5   L.   E.   A.   688; 
543,  5  L.  ed.  681.     As  to  discoveries  Stockton     v.      Williams,     1     Doug, 
and  settlements  made  by  citizens  of  (Mich.)    546;   Montgomery  v.    Ives, 
the    United    States    in    Oregon,    see  13  Smedes   &  M.  (Miss.)  173. 
Shively    v.    Bowlby,    152    U.    S.    50, 


§§    380,    381]  TREATIES  WITH   INDIANS.  412 

place  in  controversy  the  manner,  time  or  conditions  of  ex- 
tinguishing the  Indian  right  of  occupancy,  as  such  questions  are 
exclusively  for  the  consideration  of  the  government.20  In  de- 
termining what  lands  are  occupied,  consideration  should  be  given 
to  the  habits  and  modes  of  the  life  of  the  Indians.21  As  the 
paramount  source  of  title  is  in  the  United  States,  the  government 
has  the  power  to  dispose  of  public  lands  situated  within  an  In- 
dian reservation,  without  the  consent  of  the  Indians.22  But  an 
Indian  right  of  occupancy  is  sufficient  foundation  for  the  main- 
tenance of  an  action  of  ejectment.23  The  fee  is  in  the  state  of 
section  16  of  every  township  occupied  by  Indians  where  the 
same  has  been  granted  to  the  state  by  the  United  States.24 

§  380.  Cutting  timber  by  Indians. — It  may  be  said,  generally, 
that  timber  while  standing  on  the  land  is  a  part  of  the  realty 
and  can  be  sold  only  as  the  land  could  be,  and  as  land  in  the 
possession  of  Indians  cannot  be  sold  by  them,  the  timber,  until 
rightfully  severed,  cannot  be  sold.  Logs  not  cut  for  the  improve- 
ment of  the  land  may  be  recovered  by  the  United  States  in  an 
action  of  replevin.  It  may  also  be  said  as  the  Indians  possess 
only  a  right  of  occupancy  in  the  lands,  it  is  presumed  that  they 
have  no  authority  to  cut  and  sell  timber,  and  every  purchaser 
from  them  is  charged  with  this  presumption.25  But  a  distinction 
is  to  be  drawn  where,  under  certain  treaties  and  acts  of  Con- 
gress, Indian  allottees  are  vested  with  sufficient  title  in  their  al- 
lotments, notwithstanding  the  restraint  placed  upon  the  alienation 
of  the  land  to  authorize  the  cutting  of  timber  from  the  land  for 
the  purposes  of  sale,  and  not  by  way  of  improvements,  without 
obtaining  the  sanction  of  the  Department  of  the  Interior.26 

§  381.  Title  of  the  United  States  devested  by  patent. — So, 
where  lands  were  allotted  to  the  Chippewa  Indians  under  a 

20  Buttz   v.    Northern   Pac.    E.    E.  M  Beecher  v.  Wetherby,  95  U.   S. 
Co.,   119  U.   S.   55,   7   Sup.   Ct.   Eep.  525,  24  L.  ed.  441;  Eoberts  v.  Eail- 
105,  30  L.  ed.  330.  way  Co.,  43  Kan.  106,  22  Pac.  1007. 

21  Mitchell    v.    United    States,    9  25  United  States  v.  Cook,  19  Wall. 
Pet.   746,   9   L.   ed.   296.  591,  22  L.  ed.  210. 

22  United    States    v.    Alaska    Assn.,  26  United  States  v.  Paine  Lumber 
79  Fed.  156.  Co.,  206  U.  S.  467,  51  L.  ed.  1139, 

23  Marsh   v.   Brooks,    8   How.   232,  15    Sup.    Ct.,    Advance    Sheets,    697, 
.12  L.  ed.  1060.  October  Term,  1906. 


413  ABANDONMENT   OF   POSSESSION  BY   INDIANS.       [§§    382,    383 

treaty  and  patented  to  them  with  the  restriction  that  they  should 
not  sell,  lease  or  in  any  manner  alienate  the  land  without  the 
consent  of  the  President  of  the  United  States,  a  patent,  it  is  held, 
devests  the  United  States  notwithstanding  the  restriction  of  all 
title  to  the  land  or  timber  growing  on  the  lands ;  nor,  under  such 
circumstances,  is  there  any  cause  of  action  in  the  United  States 
to  recover  the  value  of  the  timber  cut  from  such  allotments  un- 
der an  improvident  contract  made  by  the  allottees  and  the  pur- 
chaser.27 

§  382.  Abandonment  of  possession  by  Indians. — The  right  of 
possession  in  the  patentee  of  lands  in  the  occupancy  of  Indians 
will  vest  immediately  on  the  abandonment  of  such  possession.28 
A  patentee  of  land  occupied  by  Indians  takes  it,  however,  sub- 
ject to  the  right  of  such  occupancy.29  A  purchaser  from  an  In- 
dian acquires  only  a  mere  right  of  possession.30  And  this  right 
of  possession  may  be  modified  by  the  United  States  at  will.31 
While  the  right  of  possession  may  pass,  the  Indians  have  no 
capacity  to  pass  the  fee  to  lands  occupied  by  them,32  and  conse- 
quently a  deed  from  the  Indians  will  convey  no  title.33 

§  383.    Treaty-making  power  may  dispose  of  government  Js  title. 

The  government 's  title  to  lands  may  be  disposed  of  to  Indians  un- 

21  United  States  v.  Auger,  153  Fed.  Gardner,    133     Fed.    285,    66    C.    C. 

671.     It    had   been    held   that    lands  A.  663.     In  view  of  the  cases  cited 

allotted  to  Indians  in  severalty,  sub-  above,   it   may   well   be    doubted   if 

ject    to    the    conditions   imposed   by  this  case  has  not  been  overruled  in- 

the   general   allotment   act   of   1887,  directly  by  them, 

declaring    that    the    United     States  a  Snell  v.   Bailway  Co.,   78  Iowa, 

shall  hold  the  allotted  lands  in  trust  94,  42  N.  W.  590. 

for  the  allottee  for  twenty-five  years,  ="  Byrne  v.   Alas,   74   Cal.   635,   16 

or  so  much  longer  as  the  President  Pac.  526. 

may  determine,  and  then  convey  the  39  Sparkman    v.   Porter,    1    Paine, 

same    to    such   allottee    or   his   heirs  471,  Fed.  Gas.  No.  7143. 

in  fee,  and  that  any  conveyance  or  31  Caldwell    v.    Robinson,    59    Fed. 

contract   in     relation    to    the     same  654. 

made   before   the   expiration   of   the  a2  East    Haven    v.    Hemingway,    7 

period    specified    shall    be    null    and  Conn.  186,  198. 

void,  remained  the  property  of  the  33  Buck     v.     Holloway,     2     J.     J. 

United    States    during    the    term    of  Marsh.  164;  Breaux  v.  Johns,  4  La. 

the  trust,  and  consequently  that  the  Ann.    142,    50   Am.   Dec.     557.     See, 

government    might   maintain   an   ac-  also,     Cornet     v.     Winton,     2     Yerg. 

tion  for  the   timber  unlawfully   cut  (Tenn.)    145;    Southampton  v.  Mecox 

from   such   lands.    United   States   v.  Co.,  116  N.  Y.  7,  22  N.  E.  389. 


§    384]  TREATIES  WITH  INDIANS.  414 

der  the  treaty-making  power  without  the  consent  of  Congress.34 
In  a  word,  the  fee  is  in  the  United  States,  and  the  title  of  the  In- 
dian is  but  a  right  of  occupancy.35  Lands  in  California,  which  at 
the  date  of  the  treaty  with  Mexico  were  occupied  by  Indian  tribes, 
became  a  part  of  the  public  domain,  and  subject  to  pre-emption,  if 
no  claim  for  them  was  presented  by  the  occupants  to  the  land 
commissioners  within  the  time  limited  by  the  act  of  Congress.36 
Congress  possesses  the  exclusive  right  of  pre-emption  to  all  lands 
lying  in  the  territories  of  the  United  States.37  The  grant  to  the 
state  of  the  sixteenth  and  thirty-sixth  sections  comprises  such  sec- 
tions in  the  occupancy  of  Indians.38 

§  384.  Indian  nation  not  a  foreign  state. — The  Constitution 
describes  the  judicial  power  as  extending  to  controversies  be- 
tween a  state  and  its  citizens  and  foreign  states,  citizens  or  subjects, 
and  the  supreme  court  of  the  United  States  has  original  jurisdic- 
tion in  cases  in  which  a  state  shall  be  a  party.  The  Cherokee  Na- 
tion sought  to  obtain  an  injunction  to  prevent  the  execution  of 
certain  acts  of  the  legislature  of  the  state  of  Georgia  in  the  ter- 
ritory of  the  Cherokee  Nation  in  that  state,  claiming  the  right 
to  proceed  in  the  supreme  court  of  the  United  States  as  a  foreign 
state  against  the  state  of  Georgia.  That  court  decided  that  the 
Cherokees  are  a  state,  having  been  uniformly  treated  as  such 
since  the  settlement  of  the  United  States,  but  that  the  condition  of 
the  Indians  in  relation  to  the  United  States  was  unlike  that  of 
and  other  two  people  in  existence;  and  they  could  not  be  de- 
nominated foreign  nations  nor  a  foreign  state  within  the  mean- 
ing of  the  Constitution.39 

34  Mining  Co.  v.  Dickert  etc.  Co.,  36  Thompson  v.   Doaksum,   68   Cal. 
<5  Utah,   196,  21  Pac.   1007,  5   L.  E.       595,   10  Pac.   200. 

A.  267.  ""  Johnson  v.  Mclntosh,  8  Wheat. 

35  Goodfellow    v.    Muckey,    1    Me-  543,  5  L.  ed.  681;  Fleliher  v.  Peck, 
Crary,    244,    Fed.     Cas.     No.     5537.  0    Cranch,    142,   3   L.    ed.    142.     See, 
Indians  have  only  a  possessory  right  also,  Eoberts  v.  M.   K.   T.   &  R.   E. 
in     the    lands    occupied    by    them.  Co.,    43     Kan.     108,    22    Pac.     1008; 
Cherokee  Nation  v.  Georgia,  5  Pet.  Blecker  v.  Bond,  3  Wash.  C.  C.  542, 
48,  8  L.   ed.  42.     The  dominion  ex-  Fed.  Cas.  No.  1534. 

ercised   by   Great   Britain    over  In-  38  Eoberts   v.   M.    K.    &   T.    E.    E. 

dians  was  transferred  to  the  United  Co.,  43  Kan.  108,  22  Pac.  1008. 

States.    State    v.    Foreman,  8  Yerg.  39  Cherokee    Nation    v.    State     of 

(Tenn.)    256.  Georgia,  5  Pet.  1,  8  L.  ed.  25. 


415  CONGRESSIONAL   ACTS.  [§§    385,    386 

§  385.  General  acts  of  Congress  not  applicable  to  Indians. — 
Indians  are  bound  by  acts  of  Congress  applicable  in  terms  to 
them.40  But  general  acts  of  Congress  are  not  considered  as  ap- 
plying to  Indians  unless  the  language  is  clearly  intended  to  in- 
clude them.41  The  right  of  eminent  domain  may  be  exercised 
by  the  United  States  for  the  purpose  of  constructing  a  railroad 
across  the  land  held  by  the  Indians  under  treaty  with  the  United 
States.42  The  laws  of  a  state  can  have  no  operation  or  effect 
over  Indians  in  their  tribal  relations.43  But  although  the  Indian 
title  has  not  been  relinquished,  a  state  may  extend  its  jurisdic- 
tion over  a  tract  of  Indian  land  within  the  borders  of  the  state.44 

The  marriage  of  a  white  person  to  an  Indian  woman  and  his 
adoption  into  the  tribe  will,  in  suits  between  himself  and  other 
members  of  the  tribe,  confer  exclusive  jurisdiction  on  the  tribal 
courts.45  According  to  the  treaty  between  the  United  States  and 
the  Cherokee  Nation,  a  murder  committed  by  an  Indian  within 
the  jurisdiction  of  that  nation  is  an  offense  against  it  and  not 
against  the  United  States,  the  fifth  amendment  not  applying.46 

§  386.  Indians  becoming  citizens. — A  state  has  no  power  to 
regulate  in  any  manner  the  social  relations  of  an  organized  In- 
dian tribe ; 47  and  an  Indian  cannot  become  a  citizen  of  the  United 
States  without  its  consent  and  co-operation.48  The  courts  of  the 
United  States  have  jurisdiction  of  a  suit  brought  by  the  govern- 

40  United   States   v.    Kagama,   118  The  criminal  laws  of  a  state  do  not 
U.  S.  379,  6  Sup.  Ct.  Eep.  1111,  30  extend  to  tribal  Indians  living  in  a 
L.  ed.  230.  reservation.     State   v.    Campbell,   53 

41  Elk  v.  Wilkins,   112  U.   S.   100,  Minn.  356,  55  N.  W.  554,  21  L.  E. 
5  Sup.  Ct.  Eep.  44,  28  L.  ed.  645.  A.  172.     See,  also,  People  v.  Dibble, 

42  Cherokee  Nation  v.  Kansas  Ey.  16   N.  Y.  221.     But  see  unless  pro- 
Co.,  135  U.  S.  653,  10  Sup.  Ct.  Eep.  hibited  by  treaty  or  act   admitting 
i*70,  34  L.  ed.  301.  state,    State    v.    Doxtater,    47    Wis. 

43  Kobogum  v.   Jackson   Iron   Co.,  284,  2  N.  W.  241. 

76  Mich.  507,  43  N.  W.  605.  4T  United    States    v.    Barnaby,    51 

44  Caldwell  v.  State,  1  Stew.  &  P.       Fed.  23. 

(Ala.)  327.  «  United  States  v.  Osborne,  6 

43  Eaymond  v.  Eaymond,  83  Fed.  Saw.  408,  2  Fed.  59.  But  see 

722,  55  U.   S.  App.  92,  28  C.   C.   A.  quaere  in  Elk  v.  Wilkins,  112  U.  S. 

38.  119,  5  Sup.  Ct.  Eep.  49,  28  L.  ed. 

48  Talton  v.  Mayes,  163  U.  S.  383,  649. 

16  Sup.  Ct.  Eep.  986,  41  L.  ed.  197. 


^    -')S7,    388]  TREATIES   WITH   INDIANS.  416 

ment  for  the  benefit  of  an  Indian  band  which  has  not  been  recog- 
nized by  the  United  States  as  constituting  a  tribal  state.49 

§  387.  Policy  of  the  United  States.— While  the  United  States 
has  power,  it  is  not  the  policy  of  the  government  to  disregard  the 
occupancy  of  the  Indians,  and  convey  title  and  possession,  not- 
withstanding the  occupancy  of  the  Indians  has  not  been  relin- 
quished.50 While  the  state  has  no* right  to  tax  the  inhabitants  of  an 
Indian  reservation,51  it  may  tax  lands  held  by  Indians  in  severalty 
when  they  are  not  situated  within  any  recognized  Indian  domain.52 
A  state  is  not  obliged  to  give  effect  to  the  laws  of  an  Indian  tribe 
by  the  rules  of  international  comity.53  An  Indian  cannot  be  con- 
sidered a  foreign  subject  so  as  to  give  him  the  right  to  sue  in  the 
federal  courts,54  nor  when  sued  in  the  state  court  is  he  entitled 
to  remove  the  cause  to  the  federal  courts.55 

§  388.  Effect  of  treaties  with  Indians. — Under  treaties  giving 
exclusive  jurisdiction  over  territory  to  an  Indian  nation,  laws  of 
a  state  providing  for  licenses  to  enter  and  occupy  such  territory 
are  void.56  The  supreme  court  of  the  United  States  has  jurisdic- 
tion to  pass  on  the  controversy,  because  the  decision  of  the  su- 
preme court  of  the  state  upholding  the  legislation  draws  in  ques- 
tion the  effect  of  the  treaty.57  A  state  has  no  power  to  withdraw 
Indians  from  the  operation  of  an  act  of  Congress  which  provides 
for  the  regulation  of  the  liquor  traffic  with  them.58  An  Indian 

43  United  States  v.  Boyd,  68  Tex.  5S  United    States     v.    Holliday,    3 

580.  Wall.    407,    18    L.    ed.    186;    United 

r'°  Gaines  v.  Hale,  26  Ark.   183.  States  v.  Boyd,  83  Fed.  554,  42  U. 

31  Moore  v.  County  Commissioners,  S.   App.  637,   27   C.  C.  A.  592.     The 

2  Wyo.  22.  sale  of  liquor  to  an  Indian  is  illegal. 
52  Blue    Jacket    v.    Commissioners,  United   States  v.   Shaw-Mux,   2   Saw. 

3  Kan.   299.  365,    Fed.    Cas.    No.    16,268;    United 
M  Roche    v.    Washington,    19    Ind.  States  v.  Osborne,  6  Saw.  407,  2  Fed. 

56,  81  Am.  Dec.  378.  59;  United  States  v.  Earl,  9  Saw.  82, 

54  Karrahoo  v.  Adams,  1  Dill.  346,  17  Fed.  77;  United  States  v.  Flynn, 
Fed.  Cas.  No.  7614.  1    Dill.    452,   Fed.    Cas.    No.    15,124; 

55  Paul  v.  Chilsoquie,  70  Fed.  402.  United  States  v.  Burdick,  1  Dak.  143, 

56  Worcester  v.  Georgia,  6  Pet.  515,  46    N.    W.    573;    Eenfrow   v.    United 
8  L.  ed.  483.  States,  3  Okla.  170,  41  Pac.  91. 

57  Worcester    v.     Georgia,    6    Pet. 
515.  8  L.  ed.  483. 


417  COURTS   FOLLOW   EXECUTIVE   DEPARTMENT.       [§§    389,    390 

cannot  separate  from  his  tribe,59  and  the  prohibition  by  Congress 
of  the  sale  of  liquors  to  Indians  is  constitutional.60 

§  389.     Recognition  of  executive  department  followed  by  courts. 

The  courts  will  follow  the  recognition  of  the  existence  of  a  tribal 
organization  by  the  proper  executive  department.61  A  state  law 
in  violation  of  the  terms  of  a  treaty  with  Indians  cannot  be  en- 
forced.62 A  contract  which  is  made  in  violation  of  a  treaty  with 
Indians  and  an  act  of  Congress  is  void.63 

§  390.  Liberal  construction  of  treaties. — The  language  used  in 
treaties  with  Indians  should  be  liberally  construed  in  their  favor, 
and  laws  placing  upon  them  liabilities  or  obligations  should  not 
be  extended  beyond  their  plain  import.  The  property  of  In- 
dians who  are  under  the  protection  of  treaties  and  the  laws  of 
Congress  is  withdrawn  from  the  operation  of  state  laws  and  is 
not  taxable.64  The  proposition  whether  or  not  certain  lands  in 
the  possession  of  an  Indian  chief  and  his  descendants  are  under 
treaties  exempt  from  taxation  presents  a  federal  question.65 
"These  Indian  tribes  are  the  wards  of  the  nation,"  said  Mr. 
Justice  Miller;  "they  are  communities  dependent  on  the  United 
States;  dependent  largely  for  their  daily  food;  dependent  for 

C!>  United    States    v.    Winslow,    3  It  was  held  that  the  acts  of  the  as- 

Saw.  341,  Fed.  Cas.  No.  16,742;   Ex  sembly   of   North    Carolina    incorpo- 

parte    Byers,    32    Fed.    408;    United  rating  the  Eastern  Band  of  Indians 

States  v.   Certain  Property,  1  Ariz.  and     confirming     certain     contracts 

40,  25  Pac.  520;  People  v.  Sweetser,  were  void.  United   States   v.   Boyd, 

1   Dak.   316,  46   N.  W.  455;    Compo  83    Fed.    554,    27    C.    C.    A.    592,   42 

v.  Jackson  Iron  Co.,  50  Mich.  583,  16  U.   S.  App.  637.     The  laws  of  Ten- 

N.  W.  300.  nessee,  however,  came  into  full  ef- 

60  United     States     v.     Forty-three  feet  after  the  removal  of  the  Chicka- 
Gallons  of  Whisky,  93  U.  S.  188,  23  saws,   subject  to  the  rights  secured 
L.   ed.   846.     But  see  United  States  by  treaty.     Love  v.  Pamplin,  21  Fed. 
v.    Seveloff,   2   Saw.    317,   Fed.   Cas.  759. 

No.  16,252,  that  certain  laws  relating  63  Uhlig  v.   Garrison,  2  Dak.  Ter. 

to  the  sale  of  liquors  to  Indians  do  96,  2  N.  W.  255. 

not  extend  to  Alaska.  M  Blue  Jacket  v.  Commissioners  of 

61  United     States    v.    Holliday,    3  Johnson  Co.    (The  Kansas  Indians), 
Wall.  407,   18  L.  ed.   182;  Territory  5    Wall.    737,    18   L.    ed.   667;    Wan- 
v.  Cox,  6  Dak.  521;  Me-shing-go-me-  Zop-E-Ah    v.      Board      of     Commis- 
sea  v.  State,  36  Ind.  316;  Brown  v.  sioners,  5  Wall.  760,  18  L.  ed.  675. 
Steele,  23  Kan.  675.  "  Wau-pe-man-qua   v.   Aldrich,   28 

62  In  re  Kace  Horse,  70  Fed.  610.  Fed.  497. 

Treaties — 27 


§§    391,    392]  TREATIES   WITH   INDIANS.  418 

their  political  rights.  They  owe  no  allegiance  to  the  states  and 
receive  from  them  no  protection;  because  of  the  local  ill-feeling, 
the  people  of  the  states  where  they  are  found  are  often  their 
deadliest  enemies.  From  their  very  weakness  and  helplessness, 
so  largely  due  to  the  course  of  dealing  of  the  Federal  Govern- 
ment with  them,  and  the  treaties  in  which  it  has  been  promised, 
there  arises  the  duty  of  protection,  and  with  if  the  power.  This 
has  always  been  recognized  by  the  Executive,  by  Congress,  and 
by  this  court,  whenever  the  question  has  arisen."  66 

§  391.  May  be  controlled  by  legislation. — The  government 
of  the  United  States,  instead  of  dealing  with  the  Indians  by 
treaties,  has  the  right  and  authority  to  control  them  by  legisla- 
tion, because  they  are  within  the  geographical  limits  of  the  United 
States.  It  follows  by  necessary  implication  that  Congress  has 
power  to  legislate  for  their  protection  and  for  the  protection  of 
those  with  whom  they  come  in  contact.  But  as  long  as  they 
maintain  their  tribal  relations,  the  states  possess  no  such  power 
over  them,  because  they  are  under  no  obligation  of  allegiance  to 
a  state,  within  which  their  reservation  may  exist,  and,  on  the 
other  hand,  the  state  extends  to  them  no  protection.67 

§  392.  Technical  meaning  of  treaties  not  to  be  considered.— 
The  words  of  a  treaty  may  be  construed  to  exclude  the  right  of  a 
state  to  sell  Indian  land  for  taxes,68  and  a  treaty  with  Indians  will 
be  favorably  construed  with  reference  to  their  right  to  hunt.69  In 
the  construction  of  a  treaty  with  Indians  the  object  should  be 
not  to  consider  it  according  to  the  technical  meaning  of  its  words 

66  United   States   v.    Kagama,    118  L.  ed.  497;  Missouri  Kiver,  Ft.  S.  & 
U.  S.  375,  383,  6  Sup.  Ct.  Rep.  1109,  G.    Co.    v.     Morris,     13    Kan.     336; 
30  L.  ed.  228;  Auditor     General    v.     Williams,     94 

67  United   States   v.   Kagama,    118  Mich.     188,    53    N.    W.    1100;     The 
U.    S.    375,    6    Sup.    Ct.    Eep.    1109,  Kansas  Indians,  5   Wall.   757,  18  L. 
30   L.   ed.   228;   Choctaw    Nation  v.  ed.  673. 

United  States,  119  U.  S.  27,  7  Sup.  69  In  re  Race  Horse,  70  Fed.  605. 

Ct.    Rep.    90,    30   L.    ed.    315;    Wau-  That  if  an  Indian  has  parted  with 

pe-man-qua  v.  Aldrich,  28  Fed.  497;  his  lands  they  are  subject  to  taxa- 

In  re  Race  Horse,  70  Fed.  605;  Mis-  tion,  see  Peck  v.  Miami  County  Com- 

souri  River,  Ft.   S.   &   G.   R.   Co.   v.  missioners,    4    Dill.    370,    Fed.    Gas. 

Morris,  13  Kan.  316.  No.  10,891. 

68  Wau-pe-man-qua   v.   Aldrich,   28 


419  INDIAN  TRIBE  NOT  A  SOVEREIGN   NATION.  [§    393 

by  learned  lawyers,  but  to  view  it  in  the  sense  in  which  they 
would  naturally  be  understood  by  the  Indians.  A  treaty  between 
the  United  States  and  an  Indian  tribe  may  be  sufficient  to  grant 
title  to  individuals  to  parts  of  the  lands  of  the  tribe,  without  an 
act  of  Congress  or  patent  from  the  executive  authority  of  the 
United  States,  if  such  was  the  intention  of  the  treaty.70  No  juris- 
diction exists  in  the  court  of  an  action  against  the  Choctaw  Na- 
tion or  its  chief  officers  when  sued  in  their  official  capacity  for 
an  alleged  debt  or  liability  of  the  nation,  and  when  the  judgment, 
if  recovered,  would  operate  against  the  nation.71 

§  393.  Indian  tribe  not  a  sovereign  nation. — Congress  has  the 
power  to  authorize  the  construction  of  a  railroad  through  the  ter- 
ritory of  an  Indian  tribe,  as  such  tribe  is  not  a  sovereign  nation. 
The  right  of  eminent  domain  can  be  exercised  without  its  consent  by 
the  United  States  upon  the  making  of  just  compensation  to  the 
owner.72  For  the  purpose  of  determining  who  are  the  communal 
owners  entitled  to  receive  per  capita  compensation,  the  courts 
will  follow  Indian  laws  and  customs  so  far  as  they  create  no  con- 
flict with  the  laws  of  the  United  States  or  with  the  purposes  of 
the  treaty  or  national  law  and  justice.73 

70  Jones   v.   Meehan,   175   U.   S.   1,  Labade  v.  United  States,  31  Ct.  of 
20  Sup.  Ct.  Rep.  1,  44  L.  ed.  49.  Cl.   205;   .Janis  v.  United  States,  32 

71  Thebo  v.  Choctaw  Tribe  of  In-  Ct.    of    Cl.    407;    Brown    v.    United 
dians,  66  Fed.  372,  13  C.  C.  A.  519.  States,  32  Ct.  of  Cl.  432;  Friend  v. 

72  Cherokee    Nation    v.     Southern  United  States,  29  Ct.  of  Cl.  495;  Con- 
Kansas   R.    Co.,    135   U.    S.    641,     10  nor  v.  United  States,  19  Ct.  of  Cl. 
Sup."  Ct.    Rep.    965,    34    L.    ed.    295.  675. 

The   court   of   claims   has   had  occa-  ™  New    York    Indians    v.    United 

sion  to  pass  upon  many  claims  aris-       States,  40  Ct.  of  Cl.  448. 
ing   from  Indian  depredations.     See 


AMBASSADORS  AND  CONSULS.  420 


CHAPTER  XIII. 

AMBASSADOBS,.  CONSULS,  CONSULAR  COUETS  AND  FOEEIGN 

.JUDGMENTS. 

§  394.  General    comments. 

§  395.  Courts  bound  by  recognition  of  President. 

§  396.  Proof   by  parol   evidence. 

§  397.  Appointment  of  ambassadors  and  consuls. 

§  398.  Citizen  appointed  diplomatic  representative. 

§  399.  Privileges  of  ambassadors  and  ministers. 

§  400.  Eesignation  as  bar  to  certiorari. 

§  401.  Eights  and  privileges  of  consuls. 

§  402.  Contract  made  in  official  capacity. 

§  403.  Consular  regulations  of  United  States. 

§  404.  Violation  of  criminal  laws. 

§  405.  In  eastern  countries. 

§  406.  United  States  court  for  China. 

§  407.  What  law  to  prevail. 

§  408.  Object  of  this  court. 

§  409.  Common  law  in  force. 

§  410.  Obtaining  money  under  false  pretenses. 

§  411.  Suits  against  consuls. 

§  412.  Exemption  under  such  statutes  not  waived  by  failure  to  plead. 

§  413.  Eeclamation  assessment. 

§  414.  Concurrent  jurisdiction  with  state  courts. 

§  415.  Eight  may  be  waived. 

§  416.  Compulsory  attendance  of  consuls  as  witnesses. 

§  417.  Consular    convention    with    France. 

§  418.  Sixth  amendment  to  Constitution. 

§  419.  Diplomatic  action. 

§  420.  Distinction  as  witnesses  between  ambassadors  and  consuls. 

§  421.  Good  excuse  to  be  shown. 

§  422.  Subpoena  in  behalf  of  prosecution. 

§  423.  Contention  of  the  government. 

§  424.  Insurgent  government  becoming  established. 

§  425.  Subpoena  by  a  state  court. 

§  426.  Archives  privileged. 

§  427.  American  consuls  as  witnesses. 

§  428.  Instructions  of  Department  of  State. 

§  429.  Other  instances. 

§  430.  Instructions  of  Mr.  Hay,  Secretary  of  State. 

§  431.  Facts  within  personal  knowledge  of  consul. 

§  432.  Evidence  before   courts-martial. 

§  433.  Information  received  in  official  capacity. 

§  434.  International  law  part  of  the  law  of  United  States. 


421  GENERAL    COMMENTS.  [§§    394,    395 

§  435.  Eeciprocity  in  foreign  judgments. 

§  436.  Foreign  judgments  in  personam. 

§  437.  Principle  as  declared  by  supreme  court  of  the  United  States. 

§  438.  International  law  founded  upon  mutuality. 

§  439.  Dissenting  views. 

§  440.  Subject  continued — Impeachment  for  fraud. 

§  441.  In  the  absence  of  fraud  the  merits  cannot  be  inquired  into. 

§  442.  Mexican  judgments. 

§  443.  Canadian  judgments. 

§  444.  Kule  in  England. 

§  445.  Contract  to  influence  corruptly  officer  of  foreign  government. 

§  446.  Consul  cannot  assume  position  antagonistic  to  his  government. 

§  447.  Jurisdiction  of  consuls  by  treaties. 

§  448.  Liability  for   false   imprisonment. 

§  449.  Authority  of  consul  in  enemy's  country. 

§  450.  Power  of  foreign  consul   to  commence  suit  in  rein. 

§  451.  Intervention  of  consul. 

§  452.  Administration  of  estates. 

§  453.  Shipping  and  seamen. 

§  454.  Action  of   consul  not   conclusive. 

§  455.  American  seamen. 

§  456.  Fees  for  prosecution  of  claim. 

§  457.  Judicial  notice  of  signature  and  seal. 

§  458.  Acknowledgments  and  affidavits  by  consular  officers. 

§  394.  General  comments. — It  is  not  within  the  scope  of  this 
work  to  enter  into  a  detailed  examination  of  the  rights  and  duties 
of  ambassadors  and  consuls,  but  as  the  rights  of  these  officers 
depend  not  only  on  the  principles  of  international  law,  but  also, 
frequently,  on  the  provisions  of  treaties,  a  brief  notice  may  not  be 
inappropriate.  It  may  be  observed  in  passing  that  a  foreign 
minister  has  the  right  to  remonstrate  with  the  executive  to  whom 
he  is  accredited  upon  any  measure  affecting  his  country.  "But 
it  will  ever  be  denied  as  a  right  of  a  foreign  minister  that  he 
should  endeavor,  by  an  address  to  the  people,  oral  or  written,  to 
forestall  a  depending  measure,  or  to  defeat  one  which  has  been 
decided. " l  No  communication  can  be  received  by  the  Depart- 
ment of  State  from  the  subjects  of  another  country,  except 
through  the  minister  of  that  country.2 

§  395.  Courts  bound  by  recognition  of  President. — The  courts 
are  bound  by  the  recognition  given  by  the  President  to  a  foreign 

1  Mr.     Randolph,      Secretary     of  2  Mr.  Monroe,  Secretary  of  State, 

State,   to  M.  Fauchet,  French  Min-  to  Admiral  Cochrane,  April  5,  1815, 

ister,    June   13,    1795,   8  MS.    Dom.  MS.  Notes  to  For.  Legs.,  II,  80. 
Let.   262. 


§§    396,    397]  AMBASSADORS    AND    CONSULS.  422 

minister,  and  they  cannot  inquire  whether  a  person  who  is  rec- 
ognized by  the  government  as  the  minister  of  a  foreign  power 
was  duly  appointed  or  not.3  A  certificate  issued  by  the  Secre- 
tary of  State,  under  his  seal  of  office,  stating  that  a  person  has  been 
recognized  as  a  foreign  minister  by  the  Department  of  State,  con- 
stitutes full  evidence  of  the  fact  of  his  authorization  and  reception 
as  such  by  the  President  of  the  United  States.4  It  is  deemed 
inadvisable  for  a  diplomatic  agent  over  his  own  signature  to  ap- 
peal to  the  press.  The  Department  of  State  should  be  addressed 
if  a  foreign  legation  has  any  cause  of  complaint  against  the 
government  or  any  person  in  its  service.5 

§  396.  Proof  by  parol  evidence. — It  is  competent  to  prove  by 
parol  evidence  the  period  during  which  a  person  was  considered 
by  the  United  States  as  a  foreign  minister.6  The  origin  and  sup- 
port of  the  privileges  of  foreign  ministers  have  their  support  in 
the  law  of  nations.7 

§  397.     Appointment   of  ambassadors  and   consuls. — By  the 

Constitution  of  the  United  States  the  President  is  vested  with 
the  power  of  nominating,  and  by  and  with  the  consent  of  the  Sen- 
ate of  appointing,  ambassadors,  other  public  ministers  and  con- 
suls.8 The  Constitution  also  provides  that  "Congress  may  by 
law  vest  the  appointment  of  such  inferior  officers  as  they  think 
proper  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. ' ' 9  Under  this  clause  Congress  can  con- 
fer power  upon  the  President  to  appoint  a  vice-consul.10  The 
word  "consul,"  as  used  in  the  Constitution,  does  not  include  a 
subordinate  and  temporary  officer  like  that  of  vice-consul.  "Be- 
cause the  subordinate  officer  is  charged  with  the  performance  of 

3  United   States   v.     Ortega,   Fed.  6  United    States  v.    Liddle,    Fed. 
Cas.  No.  15,971,  4  Wash.  C.  C.  531;  Cas.  No.  15,598,  2  Wash.  C.  C.  205. 
Torlade    d'Azambuja    v.    Pereira,    1  7  Holbrook  v.  Henderson,  6  N.  Y. 
Miles,  366.  Super.  Ct.  (4  Sand.  619.) 

4  United    States    v.   Benner,     Fed.  8  Const.,  art.  II,  sec.  2. 
Cas.   No.    14,568,   Baldw.   234.  9  Const.,  art.  II,  sec.  2. 

5  Mr.  Fish,  Secretary  of  State,  to  10  United  States  v.  Eaton,  169  U. 
Mr.  Garcia,  Argentine  Minister,  No-  S.  331,  18  Sup.  Ct.  Eep.  374,  42  L. 
vember   5,   1869,   MS.   Notes   to   Ar-  ed.  767. 

gentine  Leg.,  VI,  78. 


42o       CITIZEN  APPOINTED  DIPLOMATIC  REPRESENTATIVE.       [§§   398,  399 

the  duty  of  the  superior  for  a  limited  time,  and  under  special  and 
temporary  conditions  he  is  not  thereby  transferred  into  the  su- 
perior and  permanent  official.  To  so  hold  would  render  void  any 
and  every  delegation  of  power  to  an  inferior  to  perform,  under 
any  circumstances  or  exigency,  the  duties  of  a  superior  officer,  and 
the  discharge  of  administrative  duties  would  be  seriously  hin- 
dered."11 

§  398.  Citizen  appointed  diplomatic  representive. — The  su- 
preme court  of  the  United  States  quotes  with  approval  this  lan- 
guage of  Mr.  Secretary  Evarts:  "This  government  objects  to  re- 
ceiving a  citizen  of  the  United  States  as  the  diplomatic  repre- 
sentative of  a  foreign  power.  Such  citizens,  however,  are  fre- 
quently recognized  as  consular  officers  of  other  nations,  and  this 
policy  is  not  known  to  have  hitherto  occasioned  any  incon- 
venience." And  again:  "The  usage  of  diplomatic  intercourse 
between  nations  is  averse  to  the  acceptance,  in  the  representative 
capacity,  of  a  person  who,  while  native-born  in  the  country  which 
sends  him,  has  yet  acquired  lawful  status  as  a  citizen  by  naturali- 
zation of  the  country  to  which  he  was  sent. ' ' 12  The  court  also 
approved  the  language  of  Mr.  Secretary  Bayard  that:  "It  has 
long  been  the  almost  uniform  practice  of  this  government  to  de- 
cline to  recognize  American  citizens  as  the  accredited  diplomatic 
representatives  of  foreign  powers.  The  statutory  and  jurisdic- 
tional  immunities  and  the  customary  privileges  of  right  attach- 
ing to  the  office  of  a  foreign  minister  make  it  not  only  incon- 
sistent, but  at  times  even  inconvenient,  that  a  citizen  of  this  coun- 
try should  enjoy  so  anomalous  a  position."13  But  there  is  no 
presumption  of  the  alienage  of  the  defendant  from  the  mere  fact 
that  he  is  the  consul  in  the  United  States  of  a  foreign  govern- 
ment.14 

§  399.  Privileges  of  ambassadors  and  ministers. — Ambassadors 
and  ministers  represent  their  sovereign  and  are  exempt  from 
the  jurisdiction  of  both  civil  and  criminal  laws.15  But  they  will 

11  Mr.    Justice    White,    in    United  15  The  Schooner  Exchange  v.  Mc- 
States  v.  Eaton,  supra.  Faddon,  7  Cranch  (U.  S.),  116,  3  L. 

12  Ex  parte   Baiz,   135   U.   S.   403,  ed.  287;  State  v.  De  La  Foret,  2  Nott 
10  Sup.  Ct.  Eep.  854,  34  L.  ed.  222.  &  McC.  217;  1  Kent's  Commentaries, 

13  Ex  parte  Baiz,  supra.  15. 

14  Bors  v.  Preston,  111  U.  S.  252, 
4  Sup.  Ct.  Rep.  407,  28  L.  ed.  419. 


§§    400,   401]  AMBASSADORS   AND    CONSULS.  424 

not  be  exempt  from  the  operation  of  a  mechanic's  lien  law  as  to 
any  structure  not  used  for  purposes  relating  to  their  representa- 
tive character.16  A  servant  of  a  foreign  minister  is  entitled  to 
like  protection.17  Courts  of  law  are  obliged  to  accept  the  declara- 
tion of  a  foreign  minister  when  his  character  as  such  has  been 
established,  as  conclusive  proof  of  his  authority  to  maintain  a 
suit  on  behalf  of  his  government.  A  copy  of  his  instructions 
cannot  rightfully  be  demanded  either  by  the  courts  or  the  govern- 
ment to  which  he  is  accredited.18 

§  400.  Resignation  as  bar  to  certiorari. — If  an  application  is 
made  to  the  supreme  court  of  the  United  States  for  a  writ  of 
certiorari  to  direct  an  inferior  court  to  certify  an  indictment  on 
the  ground  that  the  accused  was  at  the  time  of  the  filing  of  the 
indictment  the  political  agent  of  a  foreign  government,  the  ap- 
plication will  be  denied  when  it  appears  that  before  the  filing  of 
the  indictment  he  was  requested  by  his  government  to  resign  and 
did  resign,  and  nothing  is  shown  by  the  records  of  the  Depart- 
ment of  State  as  to  his  relations  to  the  United  States  except  a 
denial  to  him  of  the  privilege  of  a  free  entry  of  goods  imported 
for  his  use.19 

§  401.  Rights  and  privileges  of  consuls. — A  consul  is  merely  a 
commercial  agent.  He  is  not  entitled  to  demand  the  privileges 
and  immunities  that  are  attached  to  the  person  of  a  minister  or 
ambassador.20  A  consul  is  not  a  judicial  officer,  and  a  passport 
executed  by  an  American  consul  residing  in  a  foreign  country  al- 
lowing a  person  to  return  from  that  country  to  the  United  States 
is  not  evidence  that  he  has  been  in  such  foreign  country.21  He, 

16  Byrne  v.  Herran,  1  Daly  (N.  Y.),  if  he  is  assaulted  in  turn.  United 

344.  States  v.  Ortega,  Fed.  Gas.  No.  15,- 

1T  Lockwood  v.  Coysgarne,  3  Burr.  971,  4  Wash.  C.  C.  531.  But  he  may 

1676;  Novello  v.  Toogood,  1  Barn.  rot  be  arrested  on  process.  United 

&  C.  562;  Macartney  v.  Garbutt,  24  States  v.  Benner,  Baldw.  (U.  S.) 

Q.  B.  D.  368.  234,  Fed.  Gas.  No.  14,568. 

18  Mexico  v.  De  Arangoiz,  5  Duer  ™  1     Kent's     Commentaries,     44; 
(N.  Y.),  643.  Wheaton's   Int.   Law    (Dana's    ed.), 

19  In   re    Heitz,    111    U.    S.    766,    4  sec.  249. 

Sup.  Ct.  Eep.  698,  28  L.  ed.  592.     If          21  Foster   v.   Davis,   1   Litt.    (Ky.) 
a  public  minister  commences  an  as-       71. 
sault  he   cannot  claim  his  privilege 


425  CONTRACT    MADE    IN    OFFICIAL    CAPACITY.        [§§    402,    403 

like  other  foreign  residents  that  owe  a  temporary  allegiance  to 
the  state,  is  subject  to  the  local  laws  both  in  civil  and  criminal 
cases.22  "The  general  principle  is  that  a  foreign  consular  of- 
ficer is  subject  to  no  charge  in  the  country  of  residence,  by  rea- 
son of  his  official  capacity  or  acts;  but  that  if  such  officer  con- 
tracts private  interests  there,  such  as  engaging  in  business,  ac- 
quiring taxable  property  and  the  like,  he  is  subject  to  the  same 
rules  as  a  private  individual."23 

§  402.  Contract  made  in  official  capacity. — But  a  consul-gen- 
eral is  not  personally  liable,  if  he  makes  a  contract  in  his  official 
capacity  for  the  benefit  of  his  government.24  "The  character  of 
consul  does  not  give  any  protection  to  that  of  merchant,  when 
they  are  united  in  the  same  person."25  In  all  that  concerns  his 
trade,  a  trading  consul  is  liable  to  ordinary  process  the  same  as  a 
native  merchant.26  "Consuls  are  not  public  ministers.  What- 
ever protection  they  may  be  entitled  to  in  the  discharge  of  their 
official  duties,  and  whatever  special  privileges  may  be  conferred 
upon  them  by  the  local  laws  and  usages,  or  by  international  com- 
pact, they  are  not  entitled  by  the  general  law  of  nations  to  the 
peculiar  immunities  of  ambassadors. "  27 

§  403.  Consular  regulations  of  United  States. — In  the  Con- 
sular Regulations  of  the  United  States  it  is  stated:  "Although 

t  consuls  have  no  right  to  claim  the  privileges  and  immunities  of 
diplomatic  representatives,  they  are  under  the  special  protection 
of  international  law,  and  are  regarded  as  the  officers  both  of  the 

;  state  which  appoints  and  the  state  which  receives  them.  The 
extent  of  their  authority  is  derived  from  their  commissions  and 
their  exequaturs.  It  is  believed  that  the  granting  of  the  latter 
instrument,  without  express  restrictions,  confers  upon  a  consul 

22  Coppell  v.  Hall,  7  Wall.  (U.  S.)       Minister,  April  21,  1884,  MS.  Notes 
553,  19  L.  ed.  244;  Wilcox  v.  Luco,       tc  Eussia,  VII,  449. 

118  Cal.  639,  62  Am.  St.  Eep.  305,  45  M  Jones  v.  Le  Tombe,  3  Dall.  384, 

L.  E.  A.   579,  50  Pac.   758,   45  Pac.  1  L.  ed.  647. 

'  676;  1  Kent's  Commentaries,  44;  In  23  Coppell  v.  Hall,  7  Wall.  (U.  S.) 

re   lasigi,   79  Fed.    751;    Gittings   v.  553,  19  L.  ed.  246. 

Crawford,  Taney's  Dec.  (U.  S.)    11,  26  Scott  v.  Hobe,  108  Wis.  239,  84 

Fed.  Gas.  No.  5465.  N.  W.  181. 

23  Mr.  Frelinghuysen,  Secretary  of  2T  Wheaton's  Int.  Law,  Dana's  ed., 
State,   to    Mr.    de    Struve,    Eussian  sec.  249. 


§'§    404,    405]  AMBASSADORS    AND    CONSULS.  426 

all  rights  and  privileges  necessary  to  the  performance  of  the 
consular  office.  Generally,  a  consul  may  claim  for  himself  and 
his  office  not  only  such  rights  and  privileges  as  have  been  con- 
ceded by  treaty,  but  also  such  as  have  the  sanction  of  custom  and 
local  laws,  and  have  been  enjoyed  by  his  predecessors  or  by  con- 
suls of  other  nations,  unless  a  formal  notice  has  been  given  that 
they  will  not  be  extended  to  him."  28 

§  404.  Violation  of  criminal  laws. — If  a  foreign  consul  vio- 
lates the  criminal  laws  of  the  country  in  which  he  resides,  he  is 
liable  to  be  punished  to  the  same  extent  as  other  foreign  resi- 
dents.29 While  a  consul  may  claim  exemption  from  service  on 
juries  and  in  the  militia,30  yet  American  citizens  holding  foreign 
consulates  in  the  United  States  are  not,  by  the  law  of  nations, 
exempt  from  jury  duty  or  service  in  the  militia.31 

The  consular  regulations  of  the  United  States  provides  that  the 
privileges  of  a  consul  engaging  in  business  in  the  country  of  his 
official  residence  "are,  under  international  law,  more  restricted, 
especially  if  he  is  a  subject  or  citizen  of  the  foreign  state.  If 
his  exequatur  has  been  granted  without  limitations,  he  may  claim 
the  privileges  and  exemptions  that  are  necessary  to  the  per- 
formance of  the  duties  of  his  office;  but  in  all  that  concerns  his 
personal  status,  or  his  status  as  a  merchant,  it  is  doubtful  whether 
he  can  claim  any  rights  or  privileges  not  conceded  to  other  sub- 
jects or  citizens  of  the  state.  He  should,  however,  claim  the 
same  privileges  and  immunities  that  are  granted  to  other-  mer- 
chant consuls  in  the  same  country. ' '  32 

§  405.  In  eastern  countries. — In  countries  non-Christian,  the 
right  of  extraterritoriality  exists  to  a  large  degree.  This  is  due 
to  the  fact  that  these  nations  are  not  admitted  to  a  full  com- 
munity of  international  law.33  "In  non-Christian  countries  the 
rights  of  extraterritoriality  have  been  largely  preserved,  and 

28  Consular     Begulations    of     the  30  Consular     Begulations     of     the 
United  States  (1896),  sec.  72,  p.  27.       United  States  (1896),  sec.  73,  p.  28. 

31  Gushing,  8  Op.  Atty.  Gen.  (1856) 

29  Mr.  Clayton,  Secretary  of  State, 

to  Mr.  Calderon  de  la  Barca,  Span-  „'  Consular      Regulations      of      the 

ish  Minister,  August  28,  1849,  MS.  United  States  (1896),  sec.  74,  p.  29. 
Notes  to  Spain,  VI,  187.  m  Gushing,  7  Op.  Atty.  Gen.  342. 


42' 


UNITED  STATES  COURT  FOR  CHINA. 


[§  406 


have  generally  been  confirmed  by  treaties  to  consular  officers. 
To  a  great  degree  they  enjoy  the  immunities  of  diplomatic  repre- 
sentatives together  with  certain  prerogatives  of  jurisdiction,  the 
right  of  worship,  and,  to  some  extent,  the  right  of  asylum.  These 
immunities  extend  to  exemption  from  both  the  civil  and  criminal 
jurisdiction  of  the  country  to  which  they  are  sent,  and  protect 
their  households  and  the  effects  covered  by  the  consular  residence. 
Their  personal  property  is  exempt  from  taxation,  though  it  may 
be  otherwise  with  real  estate  or  movables  not  connected  with  the 
consulate.  Generally,  they  are  exempt  from  all  personal  imposi- 
tions that  arise  from  the  character  or  quality  of  a  subject  or  citi- 
zen of  the  country. ' ' 34 

§  406.  United  States  court  for  China.— In  1906  a  United 
States  court  for  China  was  created,  with  "exclusive  jurisdiction 
in  all  cases  and  judicial  proceedings  whereof  jurisdiction  may 
now  be  exercised  by  United  States  consuls  and  ministers  by  law 
and  by  virtue  of  treaties  between  the  United  States  and  China," 
except  in  so  far  as  jurisdiction  may  be  qualified  by  section  2  of 
the  act  creating  the  court.35 


34  Consular     Eegulations     of     the 
United  States  (1896),  sec.  75,  p.  29. 

35  34    Stats,    at     Large,    pt.    1,    p. 
814.     Section  2  of  this  act  provides: 
"The  consuls  of  the  United  States 
in  the  cities  of  China  to  which  they 
are     respectively     accredited     shall 
have    the    same    jurisdiction    as    they 
now  possess  in  civil  cases  where  the 
sum    or   value    of   the   property    in- 
volved in  the  controversy  does  not 
exceed  five   hundred   dollars   United 
States  money  and  in  criminal  cases 
where  the  punishment  for  the  offense 
charged   cannot   exceed  by  law  one 
hundred  dollars'  fine  or  sixty  days' 
imprisonment,    or    both,    and    shall 
have  power  to  arrest,  examine,  and 
discharge  accused  persons  or  commit 
them  to  the   said    court.     From  all 
final  judgments  of  the  consular  court 
either  party  shall  have  the  right  to 
appeal   to   the   United   States   court 


for  China:  Provided,  also,  That  ap- 
peal may  be  taken  to  the  United 
States  court  for  China  from  any  final 
judgment  of  the  consular  courts  of 
the  United  States  in  Korea  so  long 
as  the  rights  of  extraterritoriality 
shall  obtain  in  favor  of  the  United 
States.  The  said  United  States 
court  for  China  shall  have  and  ex- 
ercise supervisory  control  over  the 
discharge  by  consuls  and  vice-con- 
suls of  the  duties  prescribed  by  the 
laws  of  the  United  States  relating 
to  the  estates  of  decedents  in  China. 
Within  sixty  days  after  the  death 
in  China  of  any  citizen  of  the  United 
States,  or  any  citizen  of  any  ter- 
ritory belonging  to  the  United 
States,  the  consul  or  vice-consul 
whose  duty  it  becomes  to  take  pos- 
session of  the  effects  of  such  de- 
ceased person  under  the  laws  of  the 
United  States  shall  file  with  the 


§  407] 


AMBASSADORS  AND  CONSULS. 


428 


It  is  provided  that  the  jurisdiction  of  this  court,  "both  original 
and  on  appeal,  in  civil  and  criminal  matters  and  also  the  jurisdic- 
tion of  the  consular  courts  in  China,  shall  in  all  cases  be  exercised 
in  conformity  with  said  treaties  and  the  laws  of  the  United  States 
now  in  force  in  reference  to  the  American  consular  courts  in 
China,  and  all  judgments  and  decisions  of  said  consular  courts, 
and  all  decisions,  judgments,  and  decrees  of  the  United  States 
court,  shall  be  enforced  in  accordance  with  said  treaties  and  laws. 
But  in  all  such  cases  when  such  laws  are  deficient  in  the  provi- 
sions necessary  to  give  jurisdiction  or  to  furnish  suitable  reme- 
dies, the  common  law  and  the  law  as  established  by  the  decisions 
of  the  courts  of  the  United  States  shall  be  applied  by  said  court 
in  its  decisions,  and  shall  govern  the  same  subject  to  the  terms 
of  any  treaties  between  the  United  States  and  China. ' ' 36 

§  407.  What  law  to  prevail. — By  treaties  with  China,  the 
United  States  obtained  extraterritorial  jurisdiction  in  civil  con- 
troversies between  American  citizens  residing  in  China,  as  to  any 


clerk  of  said  court  a  sworn  inven- 
tory of  such  effects,  and  shall  as  ad- 
ditional effects  come  from  time  to 
time  into  his  possession  immediately 
file  a  supplemental  inventory  or  in- 
ventories of  the  same.  He  shall  also 
fie  with  the  clerk  of  said  court  with- 
in sixty  days  a  schedule  under  oath 
of  the  debts  of  said  decedent,  so  far 
as  known,  and  a  schedule  or  state- 
ment of  all  additional  debts  there- 
after discovered.  Such  consul  or 
vice-consul  shall  pay  no  claims 
against  the  estate  without  the  writ- 
ten approval  of  the  judge  of  said 
court,  nor  shall  he  make  sale  of 
any  of  the  assets  of  said  estate 
without  first  reporting  the  same  to 
said  judge  and  obtaining  a  written 
approval  of  said  sale,  and  he  shall 
likewise  within  ten  days  after  any 
such  sale  report  the  fact  of  such 
sale  to  said  court,  and  the  amount 
derived  therefrom.  The  said  judge 
shall  have  power  to  require  at  any 


time  reports  from  consuls  or  vice- 
consuls  in  respect  to  all  their  acts 
and  doings  relating  to  the  estate  of 
any  such  deceased  person.  The  said 
court  shall  have  power  to  require 
where  it  may  be  necessary  a  special 
bond  for  the  faithful  performance 
of  his  duty  to  be  given  by  any  con- 
sul or  vice-consul  into  whose  pos- 
session the  estate  of  any  such  de- 
ceased citizen  shall  have  come  in 
such  amount  and  with  such  sureties 
as  may  be  deemed  necessary,  and  for 
failure  to  give  such  bond  when  re- 
quired, or  for  failure  to  properly 
perform  his  duties  in  the  premises, 
the  court  may  appoint  some  other 
person  to  take  charge  of  said  estate, 
such  person  having  first  given  bond 
as  aforesaid.  A  record  shall  be  kept 
by  the  clerk  of  said  court  of  all  pro- 
ceedings in  respect  to  any  such  es- 
tate under  the  provisions  hereof." 
"e  34  Stats,  at  Large,  pt.  1,  p.  814, 
sec.  4. 


429  OBJECT    OF    THIS    COURT.  [§§    408,    409 

crime  committed  there  by  them.  At  the  time  that  the  act  creat- 
ing the  court  for  China  was  enacted,  the  jurisdiction  of  con- 
sular courts  was  defined  by  the  Revised  Statutes  in  the  following 
terms:  "Jurisdiction  in  both  civil  and  criminal  matters  shall,  in 
all  cases,  be  exercised  and  enforced  in  conformity  with  the  laws 
of  the  United  States,  which  are  hereby,  so  far  as  is  necessary  to 
execute  such  treaties,  respectively,  and  so  far  as  they  are  suitable 
to  carry  the  same  into  effect,  extended  over  all  citizens  of  the 
United  States  in  those  countries,  and  over  all  others  to  the  extent 
that  the  terms  of  the  treaties,  respectively,  justify  or  require. 
But  in  all  cases  where  such  laws  are  not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish  suitable  reme- 
dies, the  common  law  and  the  law  of  equity  and  admiralty  shall 
be  extended  in  like  manner  over  such  citizens  and  others  in  those 
countries. ' ' 3T 

§  408.  Object  of  this  court. — In  a  recent  case  decided  by  the 
United  States  circuit  court  of  appeals  for  the  ninth  circuit,  it 
was  stated  that  in  creating  this  court,  the  object  of  the  treaty  and 
the  intention  of  Congress,  in  so  far  as  its  criminal  jurisdiction  is 
concerned,  was  "to  throw  around  American  citizens  residing  or 
sojourning  in  China,  and  there  charged  with  crime,  the  bene- 
ficient  principles  of  the  laws  of  the  United  States  relating  to  the 
:  trial  of  persons  charged  with  crimes — the  rules  of  evidence,  the 
|  presumption  of  innocence,  the  degree  of  proof  necessary  to  con- 
vict, the  right  of  the  accused  to  be  confronted  with  witnesses 
against  him,  exemption  from  being  compelled  to  criminate  him- 
self, etc.  But  while  securing  to  them  these  privileges,  the  statute 
at  the  same  time  made  them  subject  to  punishment  for  acts  made 
criminal  by  any  law  of  the  United  States,  or  for  acts  recognized 
as  crimes  under  the  common  law. ' '  38 

§  409.  Common  law  in  force. — In  that  case  the  court  had  oc- 
casion to  consider  the  date  at  which  the  common  law  in  existence 
should  be  considered  as  the  common  law  binding  the  court,  and 
reached  the  conclusion  that  Congress  had  reference  to  the  com- 
mon law  in  force  in  the  several  American  colonies  at  the  date  of 
the  separation  from  the  mother  country,  including  not  only  the 

ST  Eev.  Stats.,  sec.  4086. 

38  Biddle  v.  United  States,  156  Fed.  759. 


§    410]  AMBASSADORS  AND   CONSULS.  430 

ancient  common  law,  the  lex  non  scripta,  but  also  the  statutes 
which  had  before  this  date  been  passed  for  the  purpose  of  amend- 
ing or  aiding  the  common  law.  The  court  adopted  the  language 
of  Judge  Cooley :  "The  colonies  also  had  legislatures  of  their  own, 
by  which  laws  had  been  passed  which  were  in  force  at  the  time  of 
the  separation,  and  which  remained  unaffected  thereby.  When, 
therefore,  they  emerged  from  the  colonial  condition  into  that  of 
independence,  the  laws  which  governed  them  consisted,  first,  of 
the  common  law  of  England,  so  far  as  they  had  tacitly  adopted  it 
as  suited  to  their  condition;  second,  of  the  statutes  of  England, 
or  of  Great  Britain,  amendatory  of  the  common  law,  which  they 
had  in  like  manner  adopted;  and  third,  of  the  colonial  statutes. 
The  first  and  second  constituted  the  American  common  law,  and 
by  this  in  great  part  are  rights  adjudged  and  wrongs  redressed  in 
the  American  States  to  this  day. ' '  39 

§  410.  Obtaining  money  under  false  pretenses. — A  person  was 
convicted  in  this  court  of  obtaining  money  under  false  pretenses, 
and  it  was  claimed  on  appeal  that  this  act  was  not  an  offense  at 
common  law,  and  was  not  made  a  crime  by  the  laws  of  the  United 
States.  The  court  said  that  this  particular  kind  of  cheating  was 
not  criminal  under  the  ancient  common  law,  but  was  first  so  de- 
clared in  1757  by  statute.40  Congress  has  made  it  a  crime  in  the 
territory  over  which  the  United  States  exercises  exclusive  juris- 
diction to  obtain  money  under  false  pretenses.41  It  is  also  pro- 
vided: "That  when  any  offense  is  committed  in  any  place,  juris- 
diction over  which  has  been  retained  by  the  United  States  or 
ceded  to  it  by  a  State,  or  which  has  been  purchased  with  the  con- 
sent of  a  State  for  the  erection  of  a  fort,  magazine,  arsenal,  dock- 
yard, or  other  needful  building  or  structure,  the  punishment  for 
which  offense  is  not  provided  for  by  any  law  of  the  United  States, 
the  person  committing  such  offense  shall,  upon  conviction  in  a 

39  Cooley  'a  Constitutional  Limita-  the  laws  thus  taken  with  them, 
tions,  25.  It  also  quoted  the  Ian-  whether  in  the  mother  country  they 
guage  of  Mr.  Bishop:  "The  rule  is  were  written  or  unwritten,  are  re- 
familiar  to  the  legal  profession,  that  garded  as  unwritten,  or  common 
colonists  to  an  uninhabited  country  law."  1  Bishop's  Criminal  Law, 
carry  with  them  the  laws  of  their  sec.  155. 

mother  country,  as  far  as  applicable  *°  30    Geo.   II,    c.    24;    2    Bishop's 

to   their  new   situation   and  circum-  Crim.  Law,  sec.  392;  19  Cyc.  387. 
stances;  and  that,  in  their  new  home,  **  31  Stats,  at  Large,  1326,  1327. 


431  OBTAINING    MONEY    UNDER    FALSE    PRETENSES.  [§    410 

circuit  or  district  court  of  the  United  States  for  the  district  in 
which  the  offense  was  committed,  be  liable  to  and  receive  the  same 
punishment  as  the  laws  of  the  State  in  which  such  place  is.  situated 
now  provide  for  the  like  offense  when  committed  within  the  juris- 
diction of  such  State,  and  the  said  courts  are  hereby  vested  with 
jurisdiction  for  such  purposes;  and  no  subsequent  repeal  of  any 
such  State  law  shall  affect  any  such  prosecution. " 42  At  the 
time  that  the  act  referred  to  was  passed,  most  of  the  states  of 
the  Union  made  it  a  crime  to  obtain  money  or  goods  by  false  pre- 
tenses, and  hence,  in  all  places  in  such  states  over  which  the 
United  States  exercises  exclusive  jurisdiction,  this  act  would,  if 
there  committed,  be  a  crime  against  the  United  States.  The 
court  said  that  in  view  of  these  statutes  its  conclusion  was  that 
"obtaining  money  or  goods  under  false  pretenses  is  an  offense 
against  the  laws  of  the  United  States,  within  the  meaning  of  the 
statute  conferring  jurisdiction  upon  the  United  States  Court  for 
China,  and  that  an  American  citizen  guilty  of  the  commission  of 
such  an  act  in  China  is  subject  to  trial  and  punishment  therefor 
by  that  court. '  '43  But  the  court  held  that  the  false  representation 
alleged  as  constituting  the  false  pretense  must  be  of  some  past  or 
existing  fact.  A  representation  of  an  act  to  occur  in  the  future 
is  not  sufficient. 

43  30    Stats,    at    Large,    717.     See,  of  October,  1906,  in  Shanghai,  China, 

also,  Eev.  Stats.,  sec.  5391.     For  an  unlawfully       and       knowingly       did 

i  application    of    this    provision,    see  falsely    pretend   to   Woo   Ah    Sung, 

Sharon  v.  Hill,  24  Fed.  731;  United  Zung  Yu  Young,  Ng  Sih  Yiek  and 

;  States    v.    Wright,    Fed.    Gas.    No.  Sz  Yung,  that  the  municipal  authori- 

16,774;    United   States   v.    Pridgeon,  ties  of  the  International  Settlement 

153    U.  S.  48,  14  Sup.  Ct.  Eep.  746,  of    Shanghai,    China,    would    allow 

38  L.  ed.  631.  and   permit  in   the  building    known 

43  Biddle    v.    United    States,    supra.  as    Nos.    4    and    5    Mohawk    Eoad, 

While  this  decision  clearly  states  the  Shanghai,        China,    ....    Chinese 

jurisdiction    of    the    court    and    de-  gambling  games   to   be   played   dur- 

i  fines  the  common  law  which  prevails,  ing    the    Autumn    Kace    Meeting    of 

I  the   court   held   that   the   information  1906,  in  Shanghai,  China,  which  pre- 

upon  which  the  defendant  was  con-  tenses  were  false  as  the  said  C.  A. 

victed  did  not  state  facts  sufficient  Biddle    then    and    there    well    knew, 

to  constitute  the  offense  of  obtain-  and  by  said  false  pretenses  the  said 

f  ing    money    under    false    pretenses.  C.  A.  Biddle,  with  intent  to  defraud, 

<  On   this   point  it  said:    "The  infor-  unlawfully  did  obtain  from  the  said 

mation,  so  far  as  is  necessary  to  be  Woo  Ah  Sung,  Zung  Yu  Dong,   Ng 

v  here    set    out,    charges    that    the   de-  Sih  Yiek  and  Sz  Yung  the  sum  of 

t  fendant    'on  or  about  the  31st  day  Tls.  3000.00  Shanghai  Sycee  as  rent 


§  411] 


AMBASSADORS  AND   CONSULS. 


432 


§  411.     Suits  against  consuls. — Under  the  Constitution  of  the 
United  States  the  supreme  court  possesses  original  jurisdiction 


for  the  said  premises  to  be  used  for 
the  said  gambling  games. ' ' 

It  will  be  noticed  that  the  alleged 
false  pretenses  relate  wholly  to  some 
future  action  of  the  municipal  au- 
thorities of  the  International  Settle- 
ment of  Shanghai,  in  permitting 
Chinese  gambling  to  be  played  dur- 
ing the  Autumn  Race  Meeting  of 
1906,  in  Shanghai.  There  is  no  aver- 
ment that  defendant  made  any  false 
representation  as  to  any  existing 
fact,  or  past  fact,  and  without  such 
an  averment  the  charge  of  obtaining 
money  under  false  pretenses  cannot 
be  sustained.  In  order  to  constitute 
the  crime  of  obtaining  money  under 
false  pretenses,  the  alleged  false 
representation  must  be  of  some  past 
or  existing  fact.  Says  Mr.  Bishop, 
section  401,  volume  2,  in  his  work 
on  Criminal  Law,  third  edition: 
''Both  in  the  nature  of  things,  and 
in  actual  adjudication,  the  doctrine 
is,  that  no  representation  of  a  future 
event,  whether  in  the  form  of  a 
promise  or  not,  can  be  a  pretense, 
within  the  statute;  for  the  pretense 
must  relate  either  to  the  past  or  the 
present. ' ' 

This  statement  is  well  sustained 
by  decided  cases.  People  v.  Miller, 
169  N.  Y.  339,  88  Am.  St.  Eep.  546, 
62  N.  E.  418;  Cook  v.  State,  71  Neb. 
243,  98  N.  W.  810.  Our  attention 
has  not  been  called  to  any  case 
which  holds  to  the  contrary.  People 
v.  Wasservogel,  77  Cal.  173,  19  Pac. 
270,  which  is  cited  by  the  learned 
attorney  for  the  United  States,  is  in 
harmony  with  the  rule  as  we  have 
stated  it.  In  that  case  the  defend- 
ant obtained  money  upon  a  draft 
drawn  by  him,  he  falsely  stating  at 
the  time  that  he  had  credit  with 


the  firm  upon  which  it  was  drawn, 
tor  the  amount  of  the  draft,  and 
that  the  draft  would  be  honored. 
In  that  case,  it  will  be  perceived, 
there  was  the  false  representation 
of  an  existing  fact,  and  the  court,  in 
its  decision  upholding  the  conviction 
in  that  case,  said:  "It  is  true  that 
to  come  within  the  statute,  a  repre- 
sentation must  be  of  some  fact,  past 
or  present;  but  the  statement  of  the 
defendant  that  he  had  credit  with 
the  firm  named  for  the  amount  of 
the  draft,  and  that  the  firm  would 
honor  the  draft,  when  he  knew  that 
he  had  no  credit  with  the  firm,  and 
that  the  draft  would  not  be  honored 
or  paid,  was  sufficient. " 

Passing  from  the  information  to  a 
consideration  of  the  evidence:  It 
was  wholly  insufficient  to  justify  the 
conviction  of  defendant.  It  appears 
that  on  May  29,  1906,  the  defendant 
in  his  own  name,  but  in  fact  acting 
for  the  Hotel  Metropole  Company, 
Limited,  entered  into  a  contract 
with  the  firm  composed  of  the 
Chinese  named  in  the  information, 
whereby  the  defendant,  "let  dur- 
ing the  four  days  of  the  autumn 
race  meeting  of  1906,  the  whole  of 
the  second  floor  and  verandah  of  the 
building  Nos.  4  and  5  Mohawk 
Road,  for  the  purpose  of  running 
Chinese  tables  for  the  sum  of  taels 
six  thousand — Tls.  6,000— fifteen 
hundred  taels  of  which  to  be  paid 
on  the  signing  of  the  contract  by 
the  said  Yik  Che  as  bargain  money, 
the  balance  to  be  paid  on  or  before 
the  first  day  of  November,  1906. 
This  contract  to  be  null  and  void 
should  the  municipal  authorities 
prohibit  the  running  of  the  said 
building  as  a  Chinese  grand  stand 


433 


SUITS  AGAINST   CONSULS. 


§  411 


I  in  all  cases  affecting  ambassadors  and  consuls.44    But  while  juris- 
!  diction  thus  exists,  it  is  not  exclusive,  and  Congress  is  not  pro- 
hibited from  conferring  jurisdiction  upon  subordinate  courts  of 
!  the  United   States.45    At   one   time,   under  the   statutes   of  the 
•  United  States,  state  courts  had  no  jurisdiction  in  suits  against 
consuls.46     This  was  because  the  statutes  made  the  jurisdiction 
exclusive.     This  subject  is  more  fully  discussed  in  a  succeeding 
section. 


during  said  race  meeting  and  the 
above  mentioned  fifteen  hundred 
taels  bargain  money  be  returned  to 
the  said  Yik  Che. ' ' 

It  is  very  clearly  shown  by  the 
evidence  that  when  the  payments 
were  made  under  this  contract,  the 
parties  knew  that  gambling  was  not 
then  permitted  in  Shanghai,  and 
would  not  be  during  the  approach- 
ing Autumn  race  meeting  of  1906, 
unless  the  municipal  authorities 
should  in  some  manner  remove  the 
prohibition.  There  was  also  some 
evidence  tending  to  show  that  the 
council  had  refused,  before  the  mak- 
ing of  the  above  lease,  to  give  its 
consent  to  the  suspension  of  the  or- 
dinance against  gambling  in  Shang- 
hai, and  that  this  fact  was  known 
to  the  defendant  and  not  communi- 
cated by  him  to  the  lessees;  and 
that  he  and  others  were  endeavoring 
to  get  the  council  to  recede  from  its 
position  against  gambling,  during 
the  time  the  several  payments  were 
made  under  this  lease;  but  there  was 
no  evidence  that  defendant  ever 
made  any  expense  or  implied  repre- 
sentation that  the  ordinance  against 
gambling  had  been  repealed  or  sus- 
pended; there  was  no  false  repre- 
sentation of  any  existing  fact. ' ' 
Holding  this  view,  the  court  reversed 
the  judgment,  with  directions  to  dis- 
charge the  defendant. 
Treaties — 28 


In  another  case  appealed  from  the 
same  court  the  appellate  tribunal 
held  that  an  unloaded  pistol,  when 
there  is  no  attempt  to  use  it  other- 
wise than  by  pointing  it  in  a 
threatening  manner  at  another,  is 
not  a  dangerous  weapon.  Price  v. 
United  States,  U.  S.  Cir.  Ct.  App., 
9th  Circuit,  November  5,  1907. 

44  Const.,    art.   Ill,   sec.    2. 

45  Gittings    v.    Crawford,    Taney's 
Dec.  (U.  S.)  11,  Fed.  Cas.  No.  5465; 
St.    Luke's    Hospital    v.    Barclay,    3 
Blatchf.   (U.  S.)   259,  Fed.  Cas.  No. 
12,241;      Graham      v.      Stucken,      4 
Blatchf.    (U.   S.)    50,  Fed.   Cas.  No. 
5677;  Bors  v.  Preston,  111  U.  S.  252, 
4  Sup.  Ct.  Eep.  407,  28  L.  ed.  419. 

46  McKay  v.  Garcia,  6  Ben.  (U.  S.) 
556,  Fed.  Cas.  No.   8844;    Sartori  v. 
Hamilton,    13   N.   J.   L.    107;    Mann- 
hardt  v.   Soderstrom,   1  Binn.   (Pa.) 
138;  Valareno  v.  Thompson,  7  N.  Y. 
576;    Griffin   v.   Dominguez,   2   Duer. 
(N.     Y.)      656;     Commonwealth     v. 
Kosloff,    5    Serg.    &    K.    (Pa.)    545; 
Davis  v.  Packard,  7  Pet.  (TJ.  S.)  276, 
8  L.   ed.  684;   Sagory  v.   Wisseman, 
2   Ben.    240,   Fed.    Cas.    No.    12,217; 
Durand   v.    Halbach,    1    Miles    (Pa.), 
46;  Naylor  v.  Hoffman,  22  How.  Pr. 
510;  Dupont  v.  Pichon,  4  Dall.  321,  1 
L.  ed.  851;  Miller  v.  Van  Loben  Sels, 
66  Cal.  341,  5  Pac.  512. 


§§    412-414]  AMBASSADORS   AND   CONSULS.  434 

§  412.  Exemption  under  such  statutes  not  waived  by  failure  to 
plead. — This  exemption,  when  expressly  conferred  by  statute,  is 
not  a  personal  privilege,  and  is  not  waived  if  the  defendant  fail 
to  plead  it,  as  he  may  take  advantage  of  the  exemption  in  the  ap- 
pellate court  for  the  first  time.47  "It  is  the  privilege  of  the  coun- 
try or  government  which  the  consul  represents.  This  is  the  light 
in  which  foreign  ministers  are  considered  by  the  law  of  nations, 
and  our  Constitution  and  law  seem  to  put  consuls  on  the  same 
footing  in  this  respect.  If  the  privilege  or  exemption  was  merely 
personal,  it  can  hardly  be  supposed  that  it  would  have  been 
thought  a  matter  sufficiently  important  to  require  a  special  pro- 
vision in  the  Constitution  and  laws  of  the  United  States.  Higher 
considerations  of  public  policy  doubtless  led  to  the  provision. 
It  was  deemed  fit  and  proper  that  the  courts  of  the  government, 
with  which  rested  the  regulation  of  all  foreign  intercourse,  should 
have  cognizance  of  suits  against  the  representatives  of  such  for- 
eign governments. ' '  48  But  a  consul  may  sue  in  a  state  court.49 

§  413.  Reclamation  assessment. — The  statute  of  California  per- 
mits a  reclamation  district  to  commence  a  suit  to  determine  the 
validity  of  an  assessment  levied  for  the  reclamation  of  swamp 
lands.  This  action  is  not  an  action  in  personam,  and  while  it  is 
not  strictly  a  proceeding  in  rem,  it  partakes  of  its  nature.  Its 
purpose  is  to  test  the  legality  of  the  assessment  and  to  enable 
the  owner  to  present  his  objections  to  its  validity  at  a  hearing  in 
advance  of  an  action  upon  the  assessment.  It  is  a  process  of  law, 
and  constitutes  one  of  the  means  by  which  the  lien  upon  the  prop- 
erty in  the  district  is  established.  A  defendant  who  owns  prop- 
erty in  the  district  and  who  is  a  foreign  consul  cannot,  in  such  a 
proceeding,  plead  his  consular  privilege  in  bar.50 

§  414.  Concurrent  jurisdiction  with  state  courts. — The  courts 
of  the  United  States  originally  had  exclusive  jurisdiction  of  all 
suits  or  proceedings  against  consuls,  but  while  Congress  has  the 

47  Miller    v.    Van   Loben    Sels,    66  4!)  Sagory  v.  Wissman,  2  Ben.   (U. 
Cal.    341,    5    Pac.    512;    Valareno    v.  S.)  240,  Fed.  Gas.  No.  12,217. 
Thompson,    7    N.    Y.    576;    Davis    v.  M  Eeclamation  District  No.  551  v. 
Packard,   7   Pet.   276,   8  L.   ed.   684.  Bunyon,   117   Cal.   164,  49  Pac.   131. 

48  Davis   v.   Packard,    7    Pet.    276, 
8  L.  ed.  684. 


435  CONCURRENT   JURISDICTION    WITH   STATE    COURTS.          [§    414 

power  to  declare  that  such  jurisdiction  shall  be  exclusive,  it  may 
also  declare  the  extent  to  which  the  state  courts  may  exercise  con- 
current jurisdiction,  as  also  at  what  stage  of  the  proceedings  the 
jurisdiction  of  the  federal  courts  may  attach  in  cases  originally  in- 
stituted in  the  state  courts.  In  the  section  of  the  Revised  Stat- 
utes as  originally  enacted  the  jurisdiction  vested  in  the  courts  of 
the  United  States  in  all  suits  or  proceedings  against  ambassadors, 
or  other  public  ministers,  or  against  consuls  or  vice-consuls,  was 
made  exclusive.  But  by  the  amendment  of  1875  this  particular 
subdivision  was  stricken  out,  and  since  that  date  no  express 
declaration  has  been  made  in  the  statutes  of  the  United  States 
that  the  jurisdiction  of  the  federal  courts  against  a  consul  is  ex- 
clusive of  the  state  courts.  By  this  amendment,  "removing  from 
the  statutes  the  express  provision  that  the  jurisdiction  of  the 
federal  courts  in  suits  or  proceedings  against  consuls  should  be 
exclusive  of  the  courts  of  the  several  states,"  Songress  must  have 
intended  to  declare  that  such  jurisdiction  should  no  longer  be  ex- 
clusive, unless  it  is  made  exclusive  either  by  the  Constitution  it- 
self or  by  other  existing  legislation.  There  is,  however,  as  above 
seen,  no  express  declaration  by  Congress  that  such  jurisdiction  is 
exclusive,  but  it  must  be  conceded  that  a  consul  who  has  been 
recognized  by  the  President  and  admitted  to  the  exercise  of  his 
official  functions  shall  not,  so  long  as  he  continues  in  the  exercise 

I  of  those  functions,  be  deprived  of  the  benefits  of  the  provision  in 
the  Constitution  extending  the  judicial  power  of  the  United 

;  States  to  all  cases  in  which  he  is  affected,  and  that  unless  there 
is  some  law  by  which  he  may  invoke  this  judicial  power  for  the 
purpose  either  of  removing  the  cause  into  the  courts  of  the  United 
States  before  judgment,  or  to  review  the  judgment  of  the  state 
court,  a  state  court  can  have  no  jurisdiction  to  entertain  an  ac- 
tion in  which  he  is  a  defendant.  Under  this  provision  of  the  Con- 
stitution he  is  entitled  to  invoke  the  exercise  of  that  power  in  any 
case  to  which  he  may  be  a  party,  and,  if  Congress  has  made  any 
provision  by  which  he  can  avail  himself  of  this  right,  he  is  amply 
protected  in  the  enjoyment  of  this  provision  of  the  Constitution. 
The  Constitution  does  not  declare  that  he  shall  be  exempt  from 
the  jurisdiction  of  the  state  courts,  but  that  the  judicial  power  of 
the  United  States  shall  extend  to  all  cases  affecting  him.  It  is 
for  Congress  to  determine  the  mode  and  time  at  which  he  may 
invoke  this  jurisdiction,  and  if  that  body  has  provided  a  means 


§§    415-417]  AMBASSADORS  AND   CONSULS.  436 

by  which  he  can  avail  himself  of  this  judicial  power,  he  is  not  de- 
prived of  any  right  given  him  by  the  Constitution. ' ' 51 

§  415.  Right  may  be  waived. — Under  this  view  allowing  con- 
current jurisdiction  a  consul  sued  in  a  state  court,  in  addition  to 
any  defense  he  possesses  to  the  cause  of  action,  may  claim  his 
right  under  the  Constitution  to  have  the  matter  determined  by 
the  courts  of  the  United  States,  and  in  case  judgment  is  rendered 
against  him,  he  can  have  the  judgment  reviewed  by  the  supreme 
court  of  the  United  States.52  But  he  may  waive  this  right  either 
by  merely  pleading  his  defense  to  the  cause  of  action  without  in- 
voking this  provision  of  the  Constitution,  or  by  suffering  default, 
and  if  he  so  waives  it,  he  cannot,  after  the  rendition  of  judgment 
against  him,  claim  the  right  to  review  the  judgment  under  a  writ 
of  error  to  the  supreme  court  of  the  United  States.53 

§  416.  Compulsory  attendance  of  consuls  as  witnesses. — In  cer- 
tain conventions  with  foreign  powers  consuls  are  exempt  from 
the  obligation  of  appearing  as  witnesses.  In  1854  an  indictment 
was  found  in  the  district  court  of  the  United  States  against  the 
Mexican  consul  at  San  Francisco  for  a  violation  of  the  neutrality 
act  in  enlisting  or  hiring  persons  to  enlist  as  soldiers  in  the  ser- 
vice of  Mexico.  M.  Dillon,  the  French  consul  at  San  Francisco, 
one  of  the  witnesses  for  the  defense,  was  served  with  a  subpoena 
duces  tecum,  but  when  the  witnesses  were  called  in  court  he 
was  not  present.  The  return  upon  the  subpoena  showed  that  it 
had  been  served,  and  the  counsel  for  the  defendant  asked  that  an 
attachment  issue  against  the  absent  consul,  which  was  done  and 
the  consul  was  brought  into  court. 

§  417.  Consular  convention  with  France. — By  the  second  arti- 
cle of  the  consular  convention  between  the  United  States  and 
France  of  February  23,  1853,  it  was  provided  that  consuls  should 
never  be  compelled  to  appear  as  witnesses  before  the  courts,  but 

51  Wilcox   v.   Luco,    118    Gal.    639,  605,  21   S.   E.  582;   In  re  lasigi,  79 

62   Am.   St.   Kep.   305,   50  Pac.    758,  Fed.  751. 

45  L.  E.  A.  579.     See,  also,  Bors  v.  52  Wilcox  v.  Luco,  118  Cal.  639,  62 

Preston,   111  U.   S.   261,  4   Sup.   Ct.  Am.   St.   Eep.   305,   50   Pac.   758,   45 

Eep.  407,  28  L.  ed.  419;  De  Give  v.  L.  E.  A.  579. 

Grand  Eapids  Furniture  Co.,  94  Ga.  53  Wilcox  v.   Luco,   supra. 


437  SIXTH   AMENDMENT   TO   CONSTITUTION.        [§§    418,    419 

that  in  cases  where  their  testimony  is  desired,  they  shall  be  invited 
in  writing  to  appear  in  court  and  give  it,  and  if  they  are  not  able 
to  do  this,  a  request  shall  be  made  that  they  give  it  in  writing,  or 
that  it  be  taken  orally  at  their  residence.  By  the  third  article 
of  this  convention  it  is  provided  that  the  consular  offices  and 
dwellings  shall  be  inviolable,  and  that  under  no  pretext  shall  the 
local  authorities  invade  them,  or  examine  or  seize  the  papers  that 
may  be  deposited  in  them.  It  was  stated  by  M.  Dillon  that  the 
paper  which  it  was  sought  to  have  him  bring  with  him  must,  if 
it  existed,  have  been  a  part  of  the  archives  of  his  consulate. 

§  418.  Sixth  amendment  to  Constitution. — The  sixth  amend- 
ment to  the  Constitution  of  the  United  States  provides  that  in 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
have  compulsory  process  for  obtaining  witnesses  in  his  favor. 
It  was  contended  by  the  accused  that  this  right  is  sacred,  and 
secured  to  him  by  the  Constitution  of  the  United  States;  that 
it  is  comprehensive  and  without  exception,  and  that  neither  by 
the  provisions  of  any  law  or  of  any  treaty  can  he  be  deprived 
of  the  right  of  compelling  the  attendance  of  any  person  whose 
testimony  may  be  material  to  his  defense.  It  was  admitted  by 
the  counsel  for  the  French  consul  that  if  the  Constitution  se- 
cured this  right  to  the  accused,  no  treaty  could  deprive  him  of 
it,  and  that  if  the  court  was  called  upon  to  decide  between  allow- 
ing a  constitutional  right  to  a  prisoner  and  disregarding  a  treaty 
stipulation,  or  denying  the  constitutional  right  and  observing  the 
treaty,  its  highest  allegiance  was  to  the  Constitution.  The  court 
held,  however,  that  this  provision  of  the  Constitution  did  not  au- 
thorize the  issuance  of  such  process  to  ambassadors,  who,  by  public 
law,  were  not  amenable  to  the  laws  of  the  country  to  which  they  were 
accredited,  or  to  consuls,  who,  when  a  treaty  expressly  so  stipulated, 
were  likewise  not  amenable  to  the  process  of  the  courts.  The 
court  also  held,  that  where  a  person  sought  a  subpoena  duces  tecum, 
it  was  the  duty  of  the  court  to  require  him  to  show  that  the  docu- 
ment desired  was  not  an  official  paper  which  the  law  protected 
from  examination  and  signature.54 

§  419.  Diplomatic  action. — In  addition  to  the  controversy  in 
court,  the  incident  became  the  subject  of  diplomatic  considera- 

M  In  re  Dillon,  7  Saw.  561,  7  Fed.  Gas.  No.  3914. 


§    420]  AMBASSADORS  AND   CONSULS.  438 

tion.  The  French  consul  took  down  the  consular  flag  on  the  ser- 
vice of  the  attachment,  and  the  French  Minister  at  Washington 
protested  that  the  acts  of  the  authorities  constituted  a  gross  dis- 
respect to  France,  which  considered  the  issuance  of  the  attach- 
ment not  only  as  a  violation  of  the  terms  of  the  treaty,  but  also 
as  a  breach  of  international  law,  and  that  the  subsequent  dis- 
charge of  the  consul  did  not  atone  for  this  disrespect.  The 
French  Minister  contended  also  that  the  duces  tecum  clause  in 
the  subpoena  involved  a  violation  of  the  archives  of  the  consulate. 
Mr.  Marcy,  who  was  Secretary  of  State,  insisted  that  the  pro- 
visions of  the  Constitution  of  the  United  States  assuring  to  the 
accused  an  opportunity  to  meet  the  witnesses  produced  against 
him  was  superior  to  any  treaty  in  conflict  with  it,  except  in  cases 
where  such  treaties  contain  exceptions  to  this  right,  which  were 
recognized  as  such  at  the  time  of  the  adoption  of  the  Constitu- 
tion. 

§  420.  Distinction  as  witnesses  between  ambassadors  and  con- 
suls.— When  the  Constitution  became  effective,  Mr.  Marcy  con- 
tended, compulsory  process  could  not  be  served  on  ambassadors 
and  ministers  to  appear  as  witnesses,  and  the  clause  in  the  Consti- 
tution, he  said,  did  not  give  to  the  defendant  in  criminal  prosecu- 
tions the  right  to  compel  their  attendance  in  court.  But  this 
privilege  as  to  ambassadors  did  not,  Mr.  Marcy  argued,  apply 
to  consuls,  who  could  only  procure  the  privilege  when  given  to 
them  by  treaty.  A  treaty,  however,  he  maintained,  in  criminal 
cases  was  subject  to  the  limitations  of  the  Constitution  of  the 
United  States.  He  offered,  in  a  letter  addressed  to  the  American 
Minister  to  France,  to  compromise  the  controversy  by  a  salute 
to  the  French  flag  upon  a  French  warship  then  anchored  in  the 
bay  of  San  Francisco,  but  the  French  Minister  at  Washington 
asked  also  that  when  the  consular  flag  was  rehoisted  at  San 
Francisco  a  salute  should  be  paid  to  it.  This  Mr.  Marcy  declined 
to  do,  and  finally  the  French  government  signified  its  willingness 
to  accept  as  a  sufficient  satisfaction  an  expression  of  regret  on  the 
part  of  the  United  States,  and  that  whenever  a  French  national 
ship  or  squadron  should  appear  in  the  bay  of  San  Francisco 
"the  United  States  authorities  there,  military  or  naval,  will 
salute  the  national  flag  borne  by  such  ship  or  squadron  with  a 
national  salute,  at  an  hour  to  be  specified  and  agreed  on  with 


439  GOOD  EXCUSE  TO  BE  SHOWN.  [§§    421,    422 

the  French  naval  commanding  officer  present,  and  the  French 
ship  or  squadron  whose  flag  is  thus  saluted  will  return  the  salute 
gun  for  gun. ' '  55 

§  421.  Good  excuse  to  be  shown. — The  consular  convention 
with  France  of  1853,  while  it  provided  that  consuls  should  not 
be  forced  to  appear  as  witnesses  before  the  courts,  yet  made  it 
their  duty,  if  they  are  invited  in  writing  to  appear  and  testify, 
to  do  so  unless  they  are  unable  to  comply  with  the  request.  Mr. 
Marcy  said  that  this  duty  would  be  violated  where  a  consul  re- 
fused to  appear  without  a  good  and  substantial  excuse.  ' l  Neither 
his  official  character,  his  disinclination,  nor  any  slight  personal 
inconvenience  constitutes  such  an  excuse.  The  pressure  and 
importance  of  official  duties  requiring  immediate  performance 
may  prevent  his  attendance  in  court,  but  such  can  very  rarely 
be  the  case  where  the  court  sits  at  the  place  of  his  residence. 
It  is  not  claimed  that  the  court  can  entertain  the  question  of  the 
competency  of  his  excuse  for  declining  to  comply  with  its  invita- 
tion ;  but  where  the  government  of  the  United  States  has  fair 
grounds  to  question  the  good  faith  with  which  the  consul  avails 
himself  of  the  provision  of  the  convention  which  exempts  from 
compulsory  process,  it  has  two  modes  of  redress,  and  it  can  take 
either  at  its  option.  It  can  appeal  to  the  consul's  government 
to  inquire  into  the  case  in  this  respect,  and  to  deal  with  him  as 
it  shall  find  his  conduct  deserves;  or  it  can  revoke  his  exequa- 
tur."56 

§  422.  Subpoena  in  behalf  of  prosecution. — An  indictment  was 
filed  charging  the  defendant  with  having  fitted  out  and  with  arming 
a  vessel  to  be  employed  in  the  service  of  insurgents  against  the 
government  of  Chile.  The  counsel  for  the  United  States  caused 
a  subpoena  to  be  served  upon  the  vice-consul  to  appear  as  a 

55  Mr.  Marcy,  Secretary  of  State,  effect  of  the  constitutional  amend- 
to  Mr.  Mason,  Minister  to  France,  ment  was  not  accepted  by  the 
May  30,  1854,  June  8,  1854,  July  14,  French  government.  Mr.  Fish,  Sec- 
1854,  September  11,  1854,  December  retary  of  State,  to  Mr.  Bassett, 
13,  1854,  January  18,  1855,  M.  S.  October  18,  1872,  M.  S.  Hayti,  I,  267. 
Inst.  France,  XV,  192,  198,  202,  210,  56  Mr.  Marcy,  Secretary  of  State, 
241,  249.  Annual  message  of  Presi-  to  Mr.  de  Trangiere,  Portuguese 
dent  Pierce,  December  4,  1854.  The  charge  d 'affairs,  March  27,  1855 
contention  of  Mr.  Marcy  as  to  the  Notes  to  Portugal,  VI,  #  145. 


§    423]  AMBASSADORS   AND   CONSULS.  440 

witness.  He  appeared  in  obedience  to  the  subpoena,  and  pre- 
sented his  exequatur  recognizing  him  as  the  duly  appointed  vice- 
consul  of  Chile  at  San  Francisco,  and  also  the  consular  instruc- 
tions of  his  own  government,  prohibiting  him  without  authoriza- 
tion from  the  Minister  of  Foreign  Affairs,  or  the  respective  lega- 
tions, from  making  public  the  correspondence  which  he  held 
with  the  government,  or  information  which  he  might  receive  while 
exercising  his  charge.  These  instructions  required  consuls  to 
demand  the  privileges  and  exemptions  which  may  appertain  to 
them  by  virtue  of  treaties  or  conventions  entered  into  between 
Chile  and  the  nation  to  which  they  may  be  accredited,  and  if 
there  should  be  no  treaty,  to  demand  the  privileges  and  exemp- 
tions which  are  generally  accorded  in  the  country  of  their  resi- 
dence to  consuls  of  other  nations.  They  were  required  to  demand, 
as  essential  to  the  exercise  of  their  office,  the  inviolability  of  their 
archives  and  documents,  and  freedom  in  all  that  they  might  do 
in  their  capacity  of  consuls.  The  demand  of  the  vice-consul  to 
be  relieved  from  further  attendance  as  a  witness  was  based  upon 
the  ground  that  his  privileges  as  vice-consul  exempted  him  from 
compulsory  process  to  attend  as  a  witness  in  any  court  of  the 
United  States,  and  also  that  the  circumstances  of  the  case  before 
the  court  rendered  it  improper  that  he  should  be  required  to  at- 
tend as  a  witness  on  the  part  of  the  prosecution. 

§  423.  Contention  of  the  government. — It  was  contended  by 
the  United  States  that  the  privileges  asserted  by  the  vice-consul 
did  not  exist,  and  that  upon  the  overthrow  of  the  government 
by  which  he  was  accredited,  his  office  ceased.  On  this  point 
the  court  ruled  that  the  recognition  of  representatives  of  foreign 
countries  is  a  matter  for  the  executive  department  of  the  govern- 
ment, whose  action  must  be  accepted  by  the  judicial  depart- 
ment, but  accepting  him  as  the  duly  authorized  and  acting  con- 
sul of  the  Chilean  government,  the  court  asked:  "Does  his  posi- 
tion as  such,  of  itself,  entitle  him  to  exemption  from  compulsory 
process  to  attend  as  a  witness  in  the  courts  of  the  United  States  ? ' ' 
It  stated  that  by  the  laws  of  nations,  consuls  and  vice-consuls 
stand  on  a  different  footing  from  ambassadors  and  ministers. 
It  examined  the  case  of  Dillon,57  and  said  that  the  provision  of 

67  7  Saw.  561,  Fed.  Gas.  No.  3914. 


441      INSURGENT  GOVERNMENT  BECOMING  ESTABLISHED.       [§§    424-426 

the  Constitution  invoked  in  that  case  was  not  involved,  because 
the  vice-consul  of  Chile  was  not  subpoenaed  as  a  witness  for  the 
defendants,  but  on  behalf  of  the  prosecution,  and  that  as  he  was 
entitled  to  the  same  privileges  and  immunities  as  are  granted  to 
the  consuls  of  France,  it  would  seem  to  follow  that  he  was  ex- 
empt from  compulsory  process  to  attend  as  a  witness. 

§  424.  Insurgent  government  becoming  established. — But  the 
court  said  there  was  another  reason  why  his  attendance  should  not 
be  compelled.  The  defendants  were  charged  with  a  violation  of 
the  neutrality  laws  of  the  United  States,  and  their  offense  con- 
sisted in  giving  aid  to  those  who,  at  the  time  the  matter  was  be- 
fore the  court,  constituted  the  established  and  recognized  govern- 
ment. As  they  had  succeeded  and  become  recognized,  the  acts  of 
that  government  from  the  commencement  of  its  existence  should 
be  upheld  as  those  of  an  independent  nation.  "To  require  the 
representative  of  that  government,"  said  the  court,  "to  appear 
and  give  testimony  against  those  alleged  to  have  aided  its  estab- 
lishment would  not  only  be  contrary  to  the  principle  upon  which 
neutrality  laws  are  based,  but  would  strongly  tend  to  give  grave 
offense  to  the  government  now  recognized  by  the  United  States, 
and  with  which  this  government,  happily,  is  at  peace. ' ' 58 

§  425.  Subpoena  by  a  state  court. — The  Danish  vice-consul  at 
New  York  refused  to  obey  a  subpoena  duces  tecum  issued  by  a 
state  court,  and  in  reply  to  a  complaint  Mr.  Olney  referred  to  the 
tenth  article  of  the  consular  convention  between  the  United  States 
and  Denmark,  declaring  that  the  archives  of  consulates  are  in- 
violable, and  that  a  magistrate  has  no  right  under  any  pretext  to 
seize  or  interfere  with  them,  and  said:  "A  state  court  has  no 
jurisdiction  of  writs  against  a  foreign  consul,  such  jurisdiction 
being  specifically  reserved  to  the  federal  courts. ' '  59 

§  426.  Archives  privileged. — All  documents  which  form  a  part 
of  the  archives  of  a  foreign  consulate  are  privileged.  A  witness, 
therefore,  cannot  be  compelled  to  disclose  their  contents.  The 

58  United   States   v.    Trumbull,   48  ber  13,  1896,  213,  MS.  Dom.  Let.  673. 

Fed.  94.  See  U.  S.  Eev.  Stats.,  sees.  563,  687, 

39  Mr.  Olney,   Secretary  of  State,  688,  711. 
to    Messrs.    Martin    &    Weil,    Novem- 


§§    427,   428]  AMBASSADORS   AND    CONSULS.  442 

privilege  is  that  of  the  government  and  not  of  the  witness.  A 
circuit  court  of  the  United  States  of  one  district,  issuing  a  sub- 
poena by  which  a  witness  has  been  brought  before  an  examiner  to 
testify  in  a  suit  that  is  pending  in  another  district,  has  authority 
to  strike  out  from  the  testimony  given  by  him  anything  violative 
of  the  privilege  of  a  foreign  government  in  disclosing  the  con- 
tents of  documents  belonging  to  the  records  of  its  consulate, 
where  this  privilege  was  claimed  and  sustained  after  the  witness 
had,  through  inadvertence  in  some  of  his  answers,  violated  the 
privilege.60 

§  427.  American  consuls  as  witnesses. — Some  cases  have  oc- 
curred where  American  consuls  abroad  have  been  subpoenaed  to 
testify  under  conditions  not  in  compliance  with  consular  conven- 
tions. In  one  instance,  Mr.  Guenther,  consul-general  of  the 
United  States  at  Frankfort-on-the-Main,  received  a  subpoena  con- 
taining this  clause:  "Witnesses  who  do  not  appear  without  suf- 
ficient excuse  are  to  be  sentenced,  according  to  paragraph  50  of 
the  Penal  Code,  to  pay  the  costs  occasioned  by  such  nonappear- 
ance,  also  to  a  fine  not  to  exceed  300  marks ;  and  if  this  is  not  paid, 
to  imprisonment  not  to  exceed  six  weeks — producing  them  by 
arrest  is  also  admissible."  The  consul-general  indicated  in  a 
note  to  the  court  his  willingness  to  testify  in  case  a  proper  re- 
quest was  made,  but  protested  against  the  language  used  in 
the  subpoena,  threatening  him  in  case  he  failed  to  appear  with 
fine  and  imprisonment  and  eventual  arrest. 

§  428.  Instructions  of  Department  of  State. — The  correspond- 
ence on  the  subject  was  forwarded  to  the  Department  of  State, 
which  instructed  the  American  Embassy  at  Berlin  that  it  appeared 
that  the  consular  convention  did  not  stipulate  for  an  exemption 
from  summons,  and  hence  it  could  not  be  claimed  unless  it 
should  be  ascertained  that  the  consul-general  was  entitled  to  it 
under  the  most  favored  nation  clause.  But  it  was  also  said  that 
as  by  the  third  article  of  the  convention  the  consul-general,  who 
was  not  a  German  subject,  enjoyed  "personal  immunity  from 
arrest  or  imprisonment  except  in  case  of  crime,"  it  appeared 
that  the  threat  of  fine,  arrest  and  imprisonment  was  not  only 
gratuitous,  but  that  it  showed  a  lack  of  respect  due  from  one 

60  Kessler   v.   Best,    121   Fed.   439. 


443  OTHER    INSTANCES.  [§    429 

friendly  government  to  the  consular  officer  of  another,  and  that 
if  it  should  have  been  carried  into  execution,  would  have  consti- 
tuted a  flagrant  violation  of  the  treaty.  He  was  required  by  the 
subpoena  to  testify  "from  papers  to  be  shown"  whether  a  certain 
person  was  an  American  citizen.  This,  the  Department  of  State 
said,  evidently  referred  to  those  belonging  to  the  consular 
archives,  and  seemed  to  violate  the  article  of  the  convention 
which  declares  that  such  archives  should  be  inviolable.  The 
German  court,  in  reply  to  the  protest  of  the  consul-general,  sent 
him  a  polite  letter,  in  which  he  was  requested  to  appear  and  give 
his  testimony,  adding  that  the  summons  was,  through  error,  made 
out  in  the  usual  form.  He  complied  with  this  request,  testified,  the 
officials  verbally  apologized,  stating  that  they  had  not  known 
of  the  consular  convention,  and  the  Department  of  State  ex- 
pressed its  gratification  "with  the  satisfactory  termination  of  the 
incident. ' ' 61 

§  429.  Other  instances. — Questions  were,  in  1899,  addressed 
to  Mr.  Clancy,  the  consular  agent  of  the  United  States  at  Blue- 
fields,  by  Colonel  Torres,  who  was  conducting  a  military  court  of 
inquiry  relative  to  the  revolutionary  uprising  during  the  month 
preceding.  These  questions  related  to  the  action  of  the  consular 
agent  in  issuing  at  the  commencement  of  the  uprising  a  warning 
to  Americans  to  preserve  a  strict  neutrality,  and  also  as  to  his 
attitude  and  that  of  an  American  war  vessel  toward  the  revolu- 
tionary authorities,  and  as  to  the  action  of  several  Americans. 
These  questions  Mr.  Clancy  refused  to  answer  without  the  per- 
mission of  his  official  superiors.  The  treaty  between  the  United 
States  and  Nicaragua  then  in  force  provided  that  the  diplomatic 
agents  of  the  United  States  should  enjoy,  according  to  the  strict- 
est reciprocity,  the  same  privileges,  exemptions,  and  immunities 

61  For.  Eel.  1899,  302,  305.  Mr.  process,  either  by  arresting  him  out- 
Hay,  Secretary  of  State,  in  a  note  side  of  his  dwelling  and  office  or  in- 
to Mr.  White,  American  Ambassador  side  thereof;  or  if  it  is  not  sought 
to  Germany,  said:  "While  Mr.  to  arrest  him  outside,  virtually  im- 
Guenther's  [American  consul-gen-  prison  him  within  by  making  it  im- 
eral]  office  and  dwelling  are  in-  possible  for  him  to  go  out  without 
violable,  he  is  threatened  with  ar-  being  subject  to  arrest  and  imprison- 
rest  and  imprisonment  outside,  or  by  ment. ' '  March  6,  1899,  For.  Rel. 
virtual  imprisonment  inside,  his  office  1899,  302. 
and  dwelling,  if  he  fails  to  obey  the 


§§    430,    431]  AMBASSADORS  AND  CONSULS.  444 

granted  to  the  diplomatic  agents  and  consuls  of  the  most  favored 
nations. 

§  430.  Instructions  of  Mr.  Hay,  Secretary  of  State.— Mr.  Hay 
instructed  Mr.  Sorsby,  the  United  States  consul  at  San  Juan 
del  Norte,  who  reported  the  facts,  to  determine  what  immunities, 
exemptions,  and  privileges  are  accorded  by  Nicaragua  by  treaty 
with  Spain,  Great  Britain,  or  any  other  nation,  to  the  consuls  of 
such  nation;  and  to  claim  for  Mr.  Clancy  whatever  exemption, 
privilege,  and  immunity  may  be  accorded  to  such  consuls. 

Mr.  Hay  stated  that  as  a  general  rule  of  international  law, 
in  the  absence  of  treaty  stipulation,  consuls  are  not,  as  such  and  in 
general,  entitled  to  all  immunities  which  attach  to  a  diplomatic 
representative.  But  he  added:  "The  consular  archives  are,  how- 
ever, inviolable  under  all  circumstances.  They  can  neither  be  in- 
vaded nor  searched,  nor  seized  by  the  officers  of  justice  or  other 
authority;  but  the  personal  books  and  papers  of  the  consul  are 
not  entitled  to  such  immunity.  He  cannot  be  required  to  divulge 
information  which  came  to  him  in  his  official  capacity,  for  that  is 
the  exclusive  property  of  his  government ;  but  as  to  matters  which 
come  within  his  knowledge  or  observation  in  his  mere  capacity  as 
an  individual,  he  is  not  privileged  from  testifying  as  a  witness." 

§  431.  Facts  within  personal  knowledge  of  consul. — Mr.  Hay, 
in  denning  the  rights  and  obligations  of  a  consul,  declared  that 
if  a  consul  should  himself  take  part  in  the  commission  of  crime, 
or  in  inciting  an  insurrection,  or  should  observe  others  doing  so, 
against  the  government  to  which  he  was  accredited,  he  could  not 
be  shielded  from  giving  evidence,  according  to  the  forms  of  the 
local  law,  as  to  the  facts  acquired  by  him  in  this  manner,  and 
within  his  personal  knowledge.  "On  the  one  hand,"  he  said, 
"he  is  entitled  to  enjoy  all  the  privileges  necessary  to  enable 
him  to  discharge  the  duties  of  his  office ;  on  the  other  hand,  he  is 
not  to  refuse  to  testify,  under  the  circumstances  and  limitations 
above  stated,  simply  because  the  facts  to  which  he  is  required 
to  testify  might  be  of  a  political  character,  or  simply  because  his 
testimony  might  have  a  tendency  to  implicate  American  citizens 
or  others  in  the  commission  of  unlawful  acts. ' ' 62 

M  For.  Eel.  1899,  566-568. 


445  EVIDENCE  BEFORE  COURTS- MARTIAL.  [§§    432-434 

§  432.  Evidence  before  courts-martial. — Mr.  Merry,  American 
Minister  to  Nicaragua,  stated  in  the  case  mentioned  that  he  had 
arrived  at  the  conclusion  that  such  evidence  could  not  properly 
be  given  before  a  court-martial,  and  that  the  English  vice-consul 
took  the  same  ground,  and  refused  to  testify.  The  matter  was 
dropped  without  seeking  further  to  compel  the  consular  agent  to 
testify,  and,  according  to  Mr.  Merry,  "the  precedent  is  now 
established  that  before  courts-martial  in  Central  America  min- 
isters and  consular  officers  need  not  testify — a  position  which  I 
respectfully  suggest  may  be  of  importance  hereafter. ' ' 63 

§  433.  Information  received  in  official  capacity. — Where  it  was 
sought  to  subpoena  a  consul-general  to  testify  as  to  statements 
made  to  him,  the  Department  of  State  said  that  he  received  the 
information  in  his  official  capacity,  and  communicated  such  in- 
formation to  the  Department,  thus  making  it  a  part  of  the  records 
of  the  consulate,  and  therefore  the  Department  could  not  author- 
ize him  to  testify,  because  whatever  knowledge  he  might  possess 
was  official  and  privileged,  concerning  only  his  relation  to  his 
own  government.64 

§  434.  International  law  part  of  the  law  of  United  States. — 
International  law  is  a  part  of  the  law  of  the  United  States,  and 
as  often  as  cases  arise  depending  upon  the  principles  of  inter- 
national law  for  their  determination,  courts  of  appropriate 
jurisdiction  must  ascertain  and  administer  it.  If  there  be  no 
treaty  on  the  subject,  and  if  there  appear  to  be  no  controlling  ex- 
ecutive or  legislative  act  or  judicial  decision,  the  court  must 
consider  the  customs  and  usages  of  civilized  nations,  and  may 
consult  as  evidence  of  these  the  works  of  jurists  and  commenta- 
tors, not  for  the  opinions  that  may  be  expressed  by  them  as  to 
•  what  should  be  the  law,  but  as  reliably  stating  what  the  law 
i  actually  is.65  As  said  by  Chancellor  Kent:  "In  the  absence  of 

. 

33  Mr.  Merry  to  Mr.  Hay,  May  9,  i5  The  Paquete  Habana,  175  TJ.  S. 

1899,  For.  Eel.  583;  For  Eel.  1899,  677,  20  Sup.  Ct.  Eep.  290,  44  L.  ed. 

563,  567,  568.  320;  Hilton  v.  Guyot,  159  U.  S.  113, 

64  Mr.  Eockhill,  Third  Assistant  16  Sup.  Ct.  Eep.  139,  40  L.  ed.  95; 

Secretary  of  State,  to  Mr.  Mason,  United  States  v.  La  Jeune  Eugenie, 

Tr.  S.  Consul,  July  31,  1894,  For.  Eel.  26  Fed.  Cas.  No.  15,551,  2  Mason 

1899,  304.  409. 


§    435]  AMBASSADORS  AND   CONSULS.  446 

higher  and  more  authoritative  sanctions,  the  ordinances  of  foreign 
states,  the  opinions  of  eminent  statesmen,  and  the  writings  of 
distinguished  jurists  are  regarded  as  of  great  consideration  on 
questions  not  settled  by  conventional  law.  In  cases  where  the 
principal  jurists  agree,  the  presumption  will  be  very  great  in 
favor  of  the  solidity  of  their  maxims;  and  no  civilized  nation 
that  does  not  arrogantly  set  all  ordinary  law  and  justice  at  defi- 
ance will  venture  to  disregard  the  uniform  sense  of  the  estab- 
lished writers  on  international  law. ' '  66  Speaking  of  text-writers 
of  authority  on  international  law,  Mr.  Wheaton  observes:  "They 
are  witnesses  of  the  sentiments  and  usages  of  civilized  nations, 
and  the  weight  of  their  testimony  increases  every  time  that  their 
authority  is  invoked  by  statesmen,  and  every  year  that  passes 
without  the  rules  laid  down  in  their  works  being  impugned  by  the 
avowal  of  contrary  principles. ' '  6T 

§  435.  Reciprocity  in  foreign  judgments. — In  many  of  the 
states  of  the  Union  provision  is  made  by  statute  or  code  of  pro- 
cedure as  to  the  effect  of  foreign  judgments.  But  where  no 
such  provision  is  made,  the  question  must  be  solved  by  the  prin- 
ciples of  international  law,  and  where  the  matter  is  not  regulated 
by  treaty,  the  effect  to  be  given  to  foreign  judgment  is  a  matter 
of  comity.68  A  foreign  judgment  can  have  no  extraterritorial 
force,  but  civilized  nations  have,  for  their  convenience,  established 
a  usage,  through  which  final  judgments  of  foreign  courts  of  com- 
petent jurisdiction  are  recognized  and  allowed  to  have  an  effect 
under  regulations  and  restrictions  which  vary  in  different  coun- 
tries.69 A  judgment  in  rem  is  universally  treated  as  valid.70  So 

C6  1  Kent's  Commentaries,  18.  champs,  1  Ball.   (Pa.)    Ill,  1  L.  ed. 

CT  Wheaton  on  International  Law,  59. 

sec.  15.     See  cases  in  which  interna-  M  2  Kent's  Commentaries,  120. 

tional   law    has   been   recognized   as  ro  Wheaton  on  International  Law, 

part  of  our  law:  Rose  v.  Himely,  4  sees.    78,    79. 

Cranch,  241,  2  L.  ed.  608;  Miller  v.  70  Williams  v.  Armroyd,  7  Cranch, 

United  States,   11   Wall.  268,   20  L.  423,   3  L.   ed.  392;    Hudson  v.   Gues- 

ed.  135;  Young  v.  United  States,  97  tier,   4    Cranch,    293,    2   L.    ed.    625; 

U.  S.  39,  24  L.  ed.  992;  The  Estrella,  Ennis  v.  Smith,  14  How.   (55  U.  S.) 

4  Wheat.  298,  4  L.  ed.  574;   Dow  v.  400,  14  L.  ed.  472;  Wisconsin  v.  Peli- 

Johnson,    100   U.    S.    158,    25    L.    ed.  can  Ins.   Co.,   127  U.  S.   265,  8   Sup. 

632;   The  Mereide,  9  Cranch,  388,  3  Ct.  Eep.  1370,  32  L.   ed.   239;   Scott 

L.  ed.  769;  Eespublica  v.  De  Long-  v.    McNeal,    154   U.    S.    34,    14    Sup. 


447  FOREIGN  JUDGMENTS  IN  PERSONAM.  [§§    436,    437 

is  a  judgment  by  which  the  status  of  a  person  is  affected ;  as,  for 
instance,  a  decree  by  which  a  marriage  is  dissolved  or  confirmed.71 
Judgments  discharging  obligations  entered  into  in  a  foreign  coun- 
try between  persons  who  were  citizens  or  residents  of  such  country 
have  been  held  conclusive  of  all  matters  determined  by  such  judg- 
ments.72 

§  436.  Foreign  judgments  in  personam. — As  a  general  prop- 
osition, it  may  be  stated  that  foreign  judgments  for  debts  have 
not  been  regarded  as  conclusive,  but  only  as  prima  facie  evidence 
of  the  matters  decided  by  them.  It  was  said  by  Judge  Story: 
"The  general  doctrine  maintained  in  the  American  courts  in 
relation  to  foreign  judgments  certainly  is  that  they  are  prima 
facie  evidence,  but  that  they  are  impeachable.  But  how  far  and 
to  what  extent  this  doctrine  is  to  be  carried  does  not  seem  to  be 
definitely  settled.  It  has  been  decided  that  the  jurisdiction  of 
the  court,  and  its  power  over  the  parties,  and  the  things  in  con- 
troversy may  be  inquired  into;  and  that  the  judgment  may  be 
impeached  for  fraud.  Beyond  this  no  definite  lines  have  as  yet 
been  drawn."  73 

§  437.  Principle  as  declared  by  supreme  court  of  the  United 
States. — The  supreme  court  of  the  United  States  in  1894  was 
called  upon  to  determine  what  effect  should  be  given  in  the 

Ct.  Eep.  1108,  38  L.  ed.  896;   Mon-  701,  4  Sup.  Ct.  Eep.  328,  28  L.  ed. 

roe    v.    Douglas,    4    Sand.    Ch.    126;  298;  Thompson  v.  Thompson,  91  Ala. 

Holcomb    v.    Phelps,    16    Conn.    132;  595,  8  South.  419,  11  L.  E.  A.  445; 

McKinsey  v.  Harding,  16  Fed.  Gas.  In  re  James,  99  Cal.  376,  37  Am.  St. 

(No.  8866)   227,  4  N.  B.  E.  38;  The  Eep.    62,   33    Pac.    1123;    Peaslee    v. 

Trenton,  4  Fed.  657;  Pelton  v.  Plat-  Peaslee,  147  Mass.  180,  17  N.  E.  510; 

r.er,  13  Ohio,  217,  42  Am.  Dec.  199;  Thomas  v.  King,  95  Tenn.  70,  31  S. 

Cushing   v.   Laird,    107    U.    S.    80,    2  W.    985.     But   see   in   New   York  as 

Sup.    Ct.    Eep.    196,    27    L.    ed.    395;  to   divorce   rendered  against  a  resi- 

The  Parkhill,  18  Fed.  Cas.  (No.  10,-  dent  of  that  state  without  personal 

755a)    1192;   Alabama  etc.  E.  E.  Co.  service,    Williams    v.    Williams,    130 

v.  Jones,  Fed.  Cas.  No.  127,  7  Bank.  N.  Y.  198,  27  Am.  St.  Eep.  519,  29 

Beg.  171;  Hilton  v.  Guyot,  159  U.  S.  N.  E.  99,  14  L.  E.  A.  222;  Both  v. 

167,  16  Sup.  Ct.  Eep.  145,  40  L.  ed.  Both,   104  111.  46,   44  Am.  Eep.   84, 

109;    Pierce    v.    The    Alberto,    Hoff.  72  May   v.    Breed,    7    Cush.    15,   54 

441,  19  Fed.  Cas.   (No.  11,142)    633;  Am.  Dec.   700. 

Castrique  v.  Imrie,  L.  E.  4  H.  L.  414.  73  Story  on  Conflict  of  Laws,  sec. 

71  Cheely    v.    Clayton,    110    U.    S.  608. 


§  438] 


AMBASSADORS  AND   CONSULS. 


448 


United  States  to  a  judgment  rendered  in  France  for  a  sum  of 
money.  In  France,  the  rule  is  that  no  foreign  judgment  can  be 
executed  without  a  review  to  the  bottom — "au  fond."  Such 
review  may  extend  to  the  whole  merits  of  the  cause  of  action 
on  which  the  judgment  is  founded.  Mr.  Justice  Gray,  who  de- 
livered the  opinion  of  the  court,  entered  upon  an  exhaustive  ex- 
amination of  the  subject  of  foreign  judgments,  and  reviewed  the 
practice  in  the  various  countries  of  the  world  as  to  the  effect 
given  by  them  to  foreign  judgments,  and  announced  as  the  con- 
clusion of  the  court  that  the  reasonable,  if  not  the  necessary, 
result  of  the  decisions,  was  that  judgments  rendered  in  France  or 
in  any  other  foreign  country,  by  the  laws  of  which  judgments  of 
the  American  courts  are  reviewable  upon  the  merits,  are  not 
entitled  to  full  credit  and  conclusive  effect  when  suit  is  brought 
upon  them  in  the  country,  but  are  to  be  considered  only  as  prima 
facie  evidence  of  the  justice  of  the  claim  of  plaintiff.74 

§  438.  International  law  founded  upon  mutuality. — Mr.  Jus- 
tice Gray,  in  the  course  of  the  opinion,  said  that  in  holding 
such  a  judgment,  for  want  of  reciprocity,  not  to  be  conclusive  of 


74  Hilton  v.  Guyot,  159  U.  S.  113, 
16  Sup.  Ct.  Eep.  139,  40  L.  eel.  95. 
The  court,  per  Mr.  Justice  Gray, 
said:  "When  an  action  is  brought 
in  a  court  of  this  country,  by  a  citi- 
zen of  a  foreign  country  against  one 
of  our  own  citizens  to  recover  a 
sum  of  money  adjudged  by  a  court 
of  that  country  to  be  due  from  the 
defendant  to  the  plaintiff,  and  the 
foreign  judgment  appears  to  have 
been  rendered  by  a  competent  court 
having  jurisdiction  of  the  cause  and 
of  the  parties,  and  upon  due  allega- 
tions and  proofs  and  opportunity  to 
defend  against  them,  and  its  pro- 
ceedings are  according  to  the  course 
of  a  civilized  jurisprudence,  and  are 
stated  in  a  clear  and  formal  record, 
the  judgment  is  prima  facie  evidence 
at  least  of  the  truth  of  the  matter 
adjudged;  and  it  should  be  held  con- 
clusive upon  the  merits  tried  in  the 


foreign  court,  unless  some  special 
ground  is  shown  for  impeaching  the 
judgment,  as  by  showing  that  it  was 
affected  by  fraud  or  prejudice,  or 
that  by  the  principles  of  interna- 
tional law  and  by  the  comity  of  our 
own  country  it  should  not  be  given 
full  credit  and  effect." 

Section  661  (new  number,  723)  of 
the  Code  of  Civil  Procedure  of  the 
German  Empire,  as  amended  in  1905, 
provides: 

"Judgment  of  execution  is  to  be 
had  without  examination  of  the 
legality  of  the  judgment  (which  is 
being  executed). 

"Judgment  of  execution  is  to  be 
granted  only  after  the  judgment  of 
the  foreign  court  has  become  final 
according  to  the  law  governing  th< 
latter  court.  It  is  not  to  be  grantee 
when  recognition  of  the  judgment 
prohibited  by  section  328." 


449  DISSENTING  VIEWS.  [§    439 

the  merits  of  the  claim,  the  court  did  not  proceed  upon  any 
theory  of  retaliation  upon  one  person  by  reason  of  injustice 
done  to  another,  ''but  upon  the  broad  ground  that  international 
law  is  founded  upon  mutuality  and  reciprocity,  and  that  by  the 
principles  of  international  law  recognized  in  most  civilized  na- 
tions, and  by  the  comity  of  our  own  country,  which  it  is  our 
judicial  duty  to  know  and  to  declare,  the  judgment  is  not  entitled 
to  be  considered  conclusive.  By  our  law  at  the  time  of  the 
adoption  of  the  Constitution  a  foreign  judgment  was  considered 
as  prima  facie  evidence  and  as  not  conclusive.  There  is  no  statute 
of  the  United  States,  and  no  treaty  of  the  United  States  with 
France  or  with  any  other  nation  which  has  changed  that  law  or 
has  made  any  provision  upon  the  subject.  It  is  not  to  be  sup- 
posed that,  if  any  statute  or  treaty  had  been  or  should  be  made, 
it  would  recognize  as  conclusive  the  judgments  of  any  country 
which  did  not  give  like  effect  to  our  own  judgments.  In  the 
absence  of  treaty  or  statute,  it  appears  to  us  equally  unwarrant- 
able to  assume  that  the  comity  of  the  United  States  requires  any- 
thing more. ' ' 75 

§  439.  Dissenting  views. — Mr.  Chief  Justice  Fuller  did  not 
join  in  the  opinion  of  the  majority  of  the  court  as  pronounced  by 
Mr.  Justice  Gray,  but  filed  a  dissenting  opinion,  in  which  he  said 

Section  328  is  as  follows:  the  same  law  which  refers  to  Article 
"The  recognition  of  a  judgment  13,  Section  1,  or  from  the  provision 
of  a  foreign  court  is  prohibited:  of  Article  13,  Section  2,  or  in  the 
(1)  If  the  courts  of  the  State  to  case  of  Article  9,  Section  3,  to  the 
which  the  foreign  court  belongs  have  prejudice  of  the  wife  of  a  foreigner 
not  jurisdiction  according  to  German  who  has  been  declared  dead.  (4) 
law.  (2)  If  the  defendant  is  a  Ger-  If  the  enforcement  of  the  judgment 
man  and  has  not  been  made  a  party  would  violate  good  morals  or  the 
in  so  far  as  process  or  summons  was  purpose  of  German  law.  (5)  If  re- 
cot  served  upon  him  either  in  per-  ciprocity  be  not  guaranteed.77 
son  in  the  State  of  the  trial  court  The  provisions  of  section  5  do  not 
nor  through  the  aid  of  German  ju-  forbid  the  recognition  of  the  judg- 
dicial  process.  (3)  If  the  judgment,  ment  if  the  judgment  concerns  a 
to  the  prejudice  of  a  German  party,  claim  which  does  not  involve  prop- 
departs  from  the  provisions  of  Article  erty  rights,  and  if  according  to  Ger- 
13,  Sections  1-3,  or  of  Articles  17,  man  law,  jurisdiction  would  not  lie 
18  or  22  of  the  introductory  law  of  in  Germany. 

the    Civil    Code,    or    from    the    pro-  75  Hilton  v.  Guyot,  159  U.  S.  113, 

vision  of  the  part  of  Article  27  of  16  Sup.  Ct.  Kep.  139,  40  L.  ed.  95. 
Treaties — 29 


§    440]  AMBASSADORS  AND   CONSULS.  450 

that  he  regarded  the  question  as  one  which  should  be  determined 
by  the  ordinary  and  settled  rule  in  respect  of  allowing  a  party 
who  has  had  the  opportunity  of  proving  his  case  in  a  competent 
court  to  retry  it  on  the  merits.  He  was  of  the  opinion  that  the  doc- 
trine of  res  adjudicata  which  applied  to  domestic  judgments  should 
also  be  applied  to  foreign  judgments,  and  that  such  doctrine  rested 
on  the  general  ground  of  public  policy,  that  there  should  be  an  end 
of  litigation.  He  stated  that  this  application  of  the  doctrine  was  in 
accordance  with  American  jurisprudence,  and  it  was  not  neces- 
sary that  the  court  should  hold  it  to  be  required  by  some  rule 
of  international  law.  "The  fundamental  principle  concerning 
judgments,"  said  he,  "is  that  disputes  are  finally  determined  by 
them,  and  I  am  unable  to  perceive  why  a  judgment  in  personam 
which  is  not  open  to  question  on  the  ground  of  want  of  jurisdic- 
tion, either  intrinsically  or  over  the  parties,  or  of  fraud,  or  any 
other  recognized  ground  of  impeachment,  should  not  be  held  inter 
paries,  though  recovered  abroad,  conclusive  on  the  merits."  He 
concluded  by  saying:  "I  cannot  yield  my  assent  to  the  proposi- 
tion that  because  by  legislation  and  judicial  decision  in  France 
that  effect  is  not  given  there  to  judgments  recovered  in  this  coun- 
try which,  according  to  our  jurisprudence,  we  think  should  be 
given  to  judgments  wherever  recovered  (subject,  of  course,  to 
the  recognized  exceptions),  therefore,  we  should  pursue  the 
same  line  of  conduct  as  respects  the  judgment  of  French  tribu- 
nals. The  application  of  the  doctrine  of  res  judicata  does  not 
rest  in  discretion;  and  it  is  for  the  government,  and  not  for  its 
courts,  to  adopt  the  principle  of  retorsion,  if  deemed  under  any 
circumstances  desirable  or  necessary."  Justices  Harlan,  Brewer 
and  Jackson  concurred  in  this  dissent.76 

§  440.  Subject  continued — Impeachment  for  fraud. — At  the 
same  term  of  the  supreme  court  of  the  United  States  at  which 
Hilton  v.  Guyot  was  decided,  the  court  held  that  to  warrant  the 
impeachment  of  a  foreign  judgment  because  it  was  procured  by 
fraud,  the  fraud  must  be  distinctly  alleged  and  charged.77  In 
the  case  just  cited,  an  action  was  commenced  upon  a  Canadian 

76  Hilton  v.  Guyot,  159  U.  S.  113,       235,  16  Sup.  Ct.  Kep.  171,  40  L.  ed. 
16  Sup.  Ct.  Eep.  139,  40  L.  ed.  131.       133. 

77  Eitehie  v.  McMullen,  159  U.  S. 


451  SUBJECT    CONTINUED — IMPEACHMENT    FOR    FRAUD.       [§    440 

judgment  and  an  answer  was  interposed  which  did  not  deny  the 
jurisdiction  of  the  court  over  the  cause  or  over  the  defendant, 
nor  did  it  allege  that  fraud  was  committed  in  procuring  the  judg- 
ment, nor  set  up  any  other  special  ground  for  not  giving  it  full 
effect,  but  simply  alleged  the  same  defenses  which  were  alleged, 
or  might  have  been  alleged,  in  the  Canadian  court,  and  sought  to 
reopen  and  retry  the  whole  merits.  The  court  held  that  inasmuch 
as  by  the  law  of  England  which  prevailed  in  Canada  a  judg- 
ment of  an  American  court  would  be  allowed  full  and  conclusive 
effect,  the  defense  to  the  judgment,  which  it  was  attempted  to 
make,  could  not  be  permitted.78  "It  is  the  settled  law  of  this 
state  that  a  foreign  judgment  is  conclusive  upon  the  merits.  It 
can  be  impeached  only  by  proof  that  the  court  in  which  it  was 
rendered  had  not  jurisdiction  of  the  subject  matter  of  the  action, 
or  of  the  person  of  the  defendant,  or  that  it  was  procured  by 
means  of  fraud.  The  judgments  of  the  courts  of  a  sister  state  are 
entitled  to  full  faith  and  credit  in  the  courts  of  the  other  states, 
under  the  Constitution  of  the  United  States,  but  effect  is  given  to 
the  judgments  of  the  courts  of  foreign  countries  by  the  comity  of 
nations,  which  is  part  of  our  municipal  law."  79 

78  Eitchie  v.  McMullen,   159  U.  S.  United   States   v.    Minor,    114   U.    S. 
235,  16  Sup.  Ct.  Eep.  171,  40  L.  eel.  233,  5  Sup.   Ct.  Rep.  836,  29  L.  ed. 
133.  110;    Eeed   v.   Stanly,   89   Fed.   433; 

79  Dunstan  v.   Higgins,   138  N.  Y.  Dringer   v.    Eeceiver,   42    N.   J.    Eq. 
70,  34  Am.  St.  Eep.  431,  30  L.  E.  A.  580,  8  Atl.  815;  In  re  Griffith,  84  Cal. 
668,  33  N.  E.  729,  per  O'Brien,  J.;  113,  23  Pac.  529;  Fealey  v.  Fealey, 
Lazier   v.    Westcott,    26    N.    Y.    146,  104   Cal.  359,  43   Am.   St.  Eep.   114, 
82    Am.    Dec.    404.     The    fraud    by  38  Pac.  '50;   Camp  v.  Ward,  69  Vt. 
vhich  a  judgment  may  be  impeached  289,   60   Am.    St.    Eep.   931,   37   Atl. 
cannot    consist     only     in     false     and  748;   Marquez  v.  Frisbie,   101  U.  S. 
fraudulent     documents     or     in     false  479,  25  L.  ed.  802;  United  States  v. 
evidence  submitted  to  the  court,  and  Minor,  26  Fed.  752;  United  States  v. 
the    truth    of    which   was    contested  White,    9    Saw.    127,    17    Fed.    562; 
and  determined  by  the  court,  but  it  Andes     v.     Millard,     70    Fed.     517; 
must  be  extrinsic  to  the  matter  tried  Pacific  E.  E.  Co.  v.  Missouri  etc.  Ey., 
in     the     cause.     United     States     v.  ?  McCrary,  229,  12  Fed.  642;  United 
Throckmorton,  98  U.  S.  61,  25  L.  ed.  States  v.  Hancock,  12  Saw.  389,  30 
93;  Vance  v.  Burbank,  101  U.  S.  514,  Fed.  856;   Yeatman  v.  Bradford,  44 
25    L.   ed.   925;    Steel  v.   St.    Louis  Fed.    538;    Harrison    v.    Walton,    95 
Smelt.  &  Eef.  Co.,  106  U.  S.  447,  1  Va.    726,    64    Am.    St.    Eep.    835,    30 
Sup.    Ct.    Eep.    389,    27    L.    ed.    226;  S.  E.  374,  41  L.  E.  A.  703;  United 
Moffat  v.  United  States,   112  U.   S.  States  v.   Northern  Pac.   E.   Co.,  95 
24,  5  Sup.  Ct.  Eep.  10,  28  L.  ed.  623;  Fed.    982;    Adler   v.    Land    etc.    Co., 


§§    441,    442]  AMBASSADORS    AND    CONSULS.  452 

§  441.  In  the  absence  of  fraud  the  merits  cannot  be  inquired 
into. — A  record  of  a  court  of  competent  jurisdiction  of  British 
Honduras,  showing  the  rendition  of  a  judgment  against  a  defend- 
ant by  default  is,  when  introduced  in  evidence,  in  an  action  by 
the  plaintiff  on  the  judgment,  conclusive  of  such  default.80  In  a 
case  in  Connecticut  Mr.  Justice  Baldwin,  after  stating  that  it  is 
the  settled  rule  in  England  that  "in  an  action  instituted  there  on 
a  foreign  judgment  rendered  by  a  court  of  competent  jurisdiction, 
the  proceedings  before  which  were  not  so  conducted  as  to  be 
clearly  contrary  to  natural  justice,  the  defendant  cannot  be  al- 
lowed to  go  into  the  merits  of  the  original  cause  of  action,  which 
were  not  tried  in  the  foreign  court,  unless  it  be  necessary,  in  or- 
der to  support  a  claim,  that  the  judgment  was  procured  by  fraud," 
declared  that  "no  one  who  has  been,  or  could  have  been,  heard 
upon  a  disputed  claim  in  a  cause  to  which  he  was  duly  made  a 
party,  pending  before  a  competent  judicial  tribunal,  having  juris- 
diction over  him,  proceeding  in  due  course  of  justice,  and  not  mis- 
led by  the  fraud  of  the  other  party,  should  be  allowed,  after  a 
final  judgment  has  been  pronounced,  to  review  the  contest  in  an- 
other country.  The  object  of  courts  is  hardly  less  to  put  an  end 
to  controversies  than  to  decide  them  justly."  81 

§  442.  Mexican  judgments. — A  person  in  the  employ  of  a  rail- 
road company  suffered  personal  injuries  in  Mexico  and  brought 
an  action  in  the  federal  circuit  court  for  the  western  district  of 
Texas  to  recover  damages.  It  was  held  that  a  transcript  of  the 
proceedings  in  a  Mexican  court  which,  in  connection  with  other 
evidence,  made  a  prima  facie  showing,  with  the  force  of  res 
judicata,  of  a  settlement  adverse  to  the  plaintiff's  right  of  re- 
covery, should  be  received  in  evidence.82 

114  Ala.  562,  62  Am.  St.  Kep.  140,  New  York  v.  Brady,  115  N.  Y.  615, 

21    South.   493;    McDonald   v.    Pear-  22  N.  E.  242;  Wiseman  v.  Eastman, 

son,    114    Ala.    644,    21    South.    537;  21  Wash.  171,  57  Pac.  400. 

Weir  v.  Vail,  65  Cal.  470,  4  Pac.  425;  80  Christian    etc.    Co.    v.    Coleman, 

Sullivan  v.  Lumsden,   118   Cal.   668,  125  Ala.  158,  27  South.  786. 

50  Pac.  778;  Langdon  v.  Blackburn,  81  Fisher  v.  Fielding,  67  Conn.  91, 

109  Cal.  26,  41  Pac.  816;  Telford  v.  52  Am.  St.  Eep.  270,  34  Atl.  714,  32 

Brinkerhoff,    163    HI.   433,   45   N.   E.  L.  E.  A.  236. 

357;    Kichardson   v.    Stowe,    102    Mo.  82  Mexican  Cent.  Ky.  Co.  v.  Chan- 

44,  14  S.  W.  812;  Irvine  v.  Leyh,  102  try,  136  Fed.  316,  69  C.  C.  A.  454. 

Mo.  207,  14  S.  W.  717;  Mayor  etc. 


453  CANADIAN  JUDGMENTS.  [§§    443,    444 

§  443.  Canadian  judgments. — In  a  case  arising  in  New  Hamp- 
shire the  court  refers  to  the  case  in  the  supreme  court  of  the 
United  States  holding  that  the  effect  to  be  given  to  a  foreign 
judgment  is  determined  by  the  treatment  given  American  judg- 
ments, but  states  that  the  question  cannot  be  raised  as  against 
a  Canadian  judgment  because  the  courts  of  Canada  hold  that 
judgments  of  the  courts  of  the  United  States  are  conclusive  upon 
the  merits.83  It  is  said  by  Mr.  Black  in  his  treatise  on  judgments 
that  "the  modern  tendency  of  the  decisions  in  this  country  is 
plainly  and  uniformly  in  the  direction  of  holding  foreign  judg- 
ments in  personam,  rendered  by  courts  having  jurisdiction,  to  be 
binding  and  conclusive  upon  the  parties,  and  not  re-examinable 
upon  the  merits. ' '  84 

It  is  provided  by  the  Consolidated  Ordinances  of  the  Northwest 
Territories  of  Canada85  "that  in  case  any  defendant  is  out  of  the 
territories,  but  has  an  agent,  managing  clerk  or  other  representa- 
tive resident  and  carrying  on  his  business  within  the  same,"  ser- 
vice of  the  summons  may  be  made  on  such  agent  or  representa- 
tive, and  that  a  judgment  obtained  by  means  of  such  service  shall 
be  valid.  Under  this  provision,  if  a  defendant  has  left  the  ter- 
ritory and  sold  all  his  property  therein,  yet  has  left  a  power  of 
attorney  authorizing  his  attorney  to  transact  all  business  relat- 
ing to  his  interests  in  Yukon  Territory,  which  was  used  by  the 
attorney  in  the  settlement  of  his  affairs,  the  summons  in  a  suit 
may  be  served  on  such  attorney,  and  the  judgment  obtained 
based  on  such  service  will  be  upheld.  If  no  fraud  is  alleged,  such 
judgment,  when  suit  is  brought  on  it  in  a  court  of  the  United 
States,  will,  under  the  rule  of  comity  recognized  between  the 
courts  of  the  two  countries,  be  conclusive  on  the  merits.86 

§  444.  Rule  in  England. — In  England,  at  the  present  day,  the 
rule  is  that  all  foreign  judgments  are  considered  as  conclusive 

s    McDonald  v.   Grand  Trunk  Ky.  Phiscator,  132  Mich.  258,  93  K  W. 

Co.,  71  N.  H.  448,  93  Am.  St.  Kep.  619;  Glass  v.  Blackman,  48  Ark.  50, 

550,  59  L.   K.  A.  448,  52  Atl.   982.  2  S.  W.  257;  Alaska  Commercial  Co. 

See,   also,   Alaska   Commercial  Co.   v.  v.  Debney,   144  Fed.   1,  75  C.  C.  A. 

Debney,  144  Fed.  1,  75  C.  C.  A.  131.  131. 

M  Black   on   Judgments,    sec.    829.  K  Sec.   14,  p.  198   (of  1898). 

Sec,    also,    to    same    effect,    Konitzy  86  Alaska  Commercial  Co.  v.  Deb- 

v.  Mayer,  49  N.  Y.  571;  Coveney  v.  ney,  144  Fed.  1,  75  C.  C.  A.  131. 


§§    445,    446]  AMBASSADORS  AND  CONSULS.  454 

where  it  appears  upon  the  face  of  the  record  that  process  has 
been  duly  served  upon  the  defendant  and  he  has  had  the  op- 
portunity of  appearing  and  contesting  the  claims  of  plaintiff.87 

§  445.  Contract  to  influence  corruptly  officer  of  foreign  gov- 
ernment.— The  courts  of  this  country  will  not  enforce  a  contract 
to  bribe  or  influence  corruptly  the  officers  of  a  foreign  govern- 
ment. The  consul-general  of  the  Ottoman  government  at  New 
York  commenced  an  action  to  recover  a  sum  of  money  which  he 
alleged  was  due  to  him  for  commissions  on  the  sale  of  firearms 
to  that  government.  The  sales  were  made  while  the  plaintiff  was 
an  officer  of  the  Turkish  government,  through  the  influence  which 
he  claimed  he  exerted  upbn  its  agent,  who  had  been  sent  to 
the  United  States  to  examine  and  report  relative  to  the  purchase 
of  arms.  The  court  declared  that  the  contract  was  "corrupt  in 
its  origin  and  corrupting  in  its  tendencies.  The  services  stipu- 
lated and  rendered  were  prohibited  by  considerations  of  morality 
and  policy,  which  should  prevail  at  all  times  and  in  all  countries, 
and  without  which  fidelity  to  public  trusts  would  be  a  matter  of 
bargain  and  sale  and  not  of  duty."  The  court  also  held  that 
even  if  contracts  are  permissible  by  other  countries,  they  are  not 
enforceable  in  the  courts  of  the  United  States  if  they  contravene 
its  laws,  its  morality,  or  its  policy.88 

§  446.  Consul  cannot  assume  position  antagonistic  to  his  gov- 
ernment.— A  consul  is  an  officer  of  his  government,  and  it  is  his 
general  duty  to  guard  and  protect  the  interests  of  his  govern- 
ment and  those  of  its  citizens  or  subjects.  In  Christian  countries 
he  is  frequently  permitted  to  engage  in  commercial  pursuits,  but 
he  is  not  allowed  to  take  any  position  antagonistic  to  the  interests 
or  policy  of  his  government.  "By  some  governments,"  said 
Mr.  Justice  Field,  "he  is  invested,  in  the  absence  of  a  minister 
or  ambassador  to  represent  them,  with  diplomatic  powers;  and, 
as  between  their  citizens  or  subjects,  may  also  exercise  judicial 

87  Burn  v.  Bletcher,  23  U.  C.  Q.  B.  Australasia    v.   Harding,   9    Com.   B. 

28;  Bank  of  Australasia  v.  Mas,  16  661;  De  Cosse  Brissac  v.  Eathbone, 

Q.   B.   717;    Ferguson   v.   Mahon,    11  6  Hurl.  &  N.  301. 

Ad.  &  E.  179 ;  Henderson  v.  Hender-  88  Oscanyan  v.  Winchester  E.  Arms 

son,  6  Ad.  &  E.,  N.  S.,  288;  Castrique  Co.,  103  U.  S.  261,  26  L.  ed.  539. 
v.  Inrie,  L.  E.  4  H.  L.  414;  Bank  of 


455  JURISDICTION    OF    CONSULS    BY    TREATIES.  [§    447 

functions.  By  ail  governments  his  representative  character  is 
recognized,  and  for  that  reason  certain  exemptions  and  privileges 
are  granted  to  him.  In  the  Constitution  of  the  United  States, 
consuls  are  classed  with  ministers  and  ambassadors  in  the  enumer- 
ation of  parties  whose  cases  are  subject  to  the  original  jurisdic- 
tion of  the  supreme  court,  and  in  the  treaty  with  the  Ottoman 
Empire,  authority  is  given  to  it  to  appoint  consuls  in  the  United 

States A  contract  to  bribe  or  corruptly  influence  officers 

of  a  foreign  government  will  not  be  enforced  in  the  courts  of 
this  country;  not  from  any  consideration  of  the  interests  of  that 
government  or  any  regard  for  its  policy,  but  from  the  inherent 
viciousness  of  the  transaction,  its  repugnance  to  our  morality, 
and  the  pernicious  effect  which  its  enforcement  by  our  courts 
would  have  upon  our  people."89  While  an  agreement  to  com- 
pensate a  person  for  purely  professional  services  is  valid,  yet 
any  contract  which  is  against  public  policy,  or  which  is  so  inter- 
mingled with  one  of  that  character  as  to  make  the  two  one  trans- 
action, cannot  be  enforced. 

§  447.  Jurisdiction  of  consuls  by  treaties. — Many  treaties  have 
been  made  by  the  United  States  with  European  nations  whereby 
exclusive  jurisdiction  of  disputes  between  masters  of  vessels  and 

89  In  Oscanyan  v.  Winchester  R.  passed  was  not  accepted  and  adopted 
Arms  Co.,  103  U.  S.  261,  26  L.  ed.  or  used  by  the  stockholders,  .no  com- 
539,  citing  Hope  v.  Hope,  8  De  Gex,  pensation  should  be  allowed,  it  was 
M.  &  G.  731;  Watson  v.  Murray,  8  held  that  the  contract  was  void  as 
C.  E.  Green  (23  N.  J.  Eq.),  257.  against  public  policy.  Marshal  v. 
Where  two  transactions  are  so  inter-  Railroad  Co.,  16  How.  314,  14  L.  ed. 
mingled  as  to  become  one,  and  one  953.  Illegality  of  a  contract  need 
of  them  is  against  public  policy,  the  not  be  pleaded,  as  the  court  will  re- 
whole  transaction  is  void.  Washing-  fuse  to  enforce  a  contract  when  its 
ton  Irr.  Co.  v.  Krutz,  119  Fed.  286,  illegality  is  made  apparent.  Reed 
56  C.  C.  A.  1.  An  agreement  for  v.  Johnson,  27  Wash.  55,  67  Pac. 
compensation  to  procure  a  contract  386,  57  L.  R.  A.  404.  If  the  tend- 
with  the  government  to  furnish  it  ency  of  a  contract  is  to  promote 
supplies  is  against  public  policy  and  illegal  acts,  it  is  against  the  policy 
cannot  be  enforced.  Tool  Co.  v.  of  the  law,  and  hence  illegal. 
Norris,  2  Wall.  (69  U.  S.)  45,  17  L.  Young  v.  Thompson,  14  Colo.  App. 
ed.  868.  Where  compensation  was  315,  59  Pac.  1037.  See,  also,  Wood 
claimed  for  services  rendered  in  pro-  v.  McCann,  6  Dana,  366;  Mills  v. 
curing  the  passage  of  a  law  by  a  Mills,  40  N.  Y.  543,  100  Am.  Dec. 
.state  legislature,  upon  a  contract  535. 
that  if  the  law  was  not  passed,  or  if 


§§    448,    449]  AMBASSADORS  AND  CONSULS.  456 

their  crews  have  been  conferred  upon  consuls.90 '  The  treaty  may 
provide  that  the  consul  shall  have  exclusive  jurisdiction ; 91  but 
it  would  seem  that  to  confer  this  jurisdiction  a  special  provision 
in  a  treaty  is  necessary.92 

§  448.  Liability  for  false  imprisonment. — A  constable  will  be 
liable  in  an  action  for  false  imprisonment  if,  proceeding  under  a 
process  issued  from  a  state  court  in  a  controversy  over  which  a 
consul  by  the  provisions  of  a  treaty  has  exclusive  jurisdiction,  he 
arrests  the  captain  of  a  vessel,  and  if  he  at  the  time  at  which  he 
made  the  arrest  was  fully  informed  of  the  provisions  of  the 
treaty.93  But  a  consular  compact  will  not  prevent  a  federal  court 
from  assuming  jurisdiction  where  the  master  of  a  vessel  is  guilty 
of  a  barbarous  and  malicious  assault  on  a  seaman.94  But  where 
the  consul  has,  by  a  treaty,  exclusive  jurisdiction,  his  decision  is 
not  subject  to  review  by  the  courts.95 

§  449.  Authority  of  consul  in  enemy's  country. — A  consul  of 
the  United  States  has,  by  virtue  of  his  official  position,  no  power 
to  grant  any  license  or  permit  to  exempt  a  vessel  of  the  enemy 
from  capture  and  confiscation.96  "To  exempt  the  property  of 
enemies  from  the  effect  of  hostilities,"  says  Sir  William  Scott, 
"is  a  very  high  act  of  sovereign  authority;  if  at  any  time  dele- 
gated to  persons  in  a  subordinate  situation,  it  must  be  exercised 
either  by  those  who  have  a  special  commission  granted  to  them 
for  the  particular  business,  and  who  in  legal  language  are  termed 
mandatories,  or  by  persons  in  whom  such  a  power  is  vested  in  any 
official  situation  to  which  it  may  be  considered  incidental.  It  is 

ft°  See   Norberg  v.   Hillbren,   5   N.  93  Tellefsen  v.  Fee,  168  Mass.  189, 

Y.  Leg.  Obs.   177,  7  Am.  Law  Eev.  60  Am.  St.  Eep.  379,  46  N.  E.  562,  45 

418;  The  Elwine  Kreplin,  9  Blatchf.  L.  E.  A.  481. 

438,   Fed.   Gas.   No.   4,426;    Tellefsen  M  The  Salomon!,  29  Fed.  534.     See, 

v.   Fee,   168   Mass.   188,   60   Am.   St.  also,    Enos    v.    Sowle,    2    Hawaiian, 

Eep.  379,  46  N.  E.  562,  45  L.  E.  A.  332. 

481;    The   Marie,  49  Fed.   286;    The  95  The  Elwine  Kreplin,  9  Blatchf. 

Wellhaven,  55  Fed.  80;  In  re  Wilden-  438,  Fed.  Gas.  No.  4,426. 

haus,  28  Fed.  924.  9C  The  Benito  Estenger,  176  U.  S. 

91  The  Burchard,  42  Fed.  608.  568,  20  Sup.  Ct.  Eep.  489,  44  L.  ed. 

92  Weiberg  v.  The  Brig  St.  Oloff,  2  592. 
Pet.  Adm.  432,  Fed.  Gas.  No.  17,357. 


457  INTERVENTION    OP    CONSULS.  [§§    450,    451 

quite  clear  that  no  consul  in  any  country,  particularly  in  an 
enemy's  country,  is  vested  with  any  such  power  in  virtue  of  his 
station."97 

§  450.  Power  of  foreign  consul  to  commence  suit  in  rem. — 
While  a  foreign  consul  has  a  right  to  claim  the  property  or  to  com- 
mence a  proceeding  in  rem,  where  the  rights  of  property  of  his  fel- 
low-citizens are  involved,  without  a  special  procuration  from  those 
persons  in  whose  behalf  he  is  moving,  yet  he  is  not  entitled  to  re- 
ceive restitution  of  the  property  in  question  without  producing  spe- 
cial authority  from  the  particular  persons  who  are  entitled  to  it.98 
"To  watch  over  the  rights  and  interests  of  their  subjects,  wher- 
ever the  pursuits  of  commerce  may  draw  them  or  the  vicissitudes 
of  human  affairs  may  force  them,  is  the  great  object  for  which 
consuls  are  deputed  by  their  sovereigns ;  and  in  a  country  where 
laws  govern  and  justice  is  sought  for  in  courts  only,  it  would 
be  a  mockery  to  preclude  them  from  the  only  avenue  through 
which  their  course  lies  to  the  end  of  their  mission.  The  long  and 
universal  usage  of  the  courts  of  the  United  States  has  sanctioned 
the  exercise  of  this  right;  and  it  is  impossible  that  any  evil  or 
inconvenience  can  flow  from  it. ' '  99 

§  451.  Intervention  of  consul. — A  foreign  consul  can  petition 
the  court  to  have  paid  into  the  treasury  the  proceeds  of  property 
libeled.100  While  a  consul  is  not  entitled  to  represent  his  sov- 
ereign in  a  country  where  the  sovereign  has  an  ambassador,  he 
is  entitled  to  intervene  in  behalf  of  all  subjects  of  that  powrer 
that  are  interested.101  When  a  consul  is  allowed  to  intervene, 
he  is  not  attempting  to  negotiate  with  a  foreign  state  nor  to  vin- 
dicate any  prerogative  of  government,  but  he  simply  is  the  repre- 
sentative of  his  government  as  having  an  interest  in  property 
proceeded  against. 

9T  The  Hope,  1  Dod.  226,  quoted  in  10°  The    Ship    Adolph,    1    Curt.    89, 

Eogers  v.  The  Amado,  Newb.  400,  20  Fed.    Gas.    No.    86.     See,    also,    The 

Fed.  Gas.  No.  12,005.  Conserva,  38  Fed.  434. 

98  The    Bello    Corrunes,    6    Wheat.  101  Eobson  v.  The  Huntress,  2  Wall. 
152,  5  L.  ed.  229.  Jr.   59,   Fed.    Gas.    No.    11,971.     See, 

99  Mr.     Justice     Johnson     in    The  also,  The  Bello  Corrunes,  6  Wheat.  166, 
Bello   Corrunes,   6   Wheat.    152,   5   L.  5  L.  ed.  229. 

ed.    229.     See,    also,    The    Elizabeth, 
Blatehf.  Pr.  253,  Fed.  Gas.  No.  4350. 


§§    452,    453]  AMBASSADORS  AND   CONSULS.  458 

§  452.  Administration  of  estates. — The  functions  of  a  consul 
in  the  administration  of  the  estates  of  the  subjects  of  the  nation 
by  which  he  is  appointed,  and  who  dies  within  his  jurisdiction  or 
consulate,  are  often  regulated  by  treaty.  It  is  said  in  the  con- 
sular regulations:  "In  Austria-Hungary,  Belgium,  Germany,  Italy 
and  Netherlands  and  colonies,  the  local  authorities  are  requested 
to  inform  consuls  of  the  death  of  their  countrymen  intestate  or 
without  known  heirs.  In  Germany,  Roumania,  and  Servia,  con- 
suls have  the  right  to  appear  for  absent  heirs  or  creditors  until 
regularly  authorized  representatives  appear.  In  Muscat,  Mor- 
occo, Persia,  Peru,  Salvador,  Tripoli,  and  Tunis,  they  may  ad- 
minister on  the  property  of  their  deceased  countrymen.  In 
Colombia  they  may  do  so  except  when  legislation  prevents  it. 
In  Costa  Rica,  Honduras,  and  Nicaragua,  they  may  nominate 
curators  to  take  charge  of  such  property,  so  far  as  local  laws 
permit.  In  Paraguay,  the}^  may  become  temporary  custodians  of 
such  property.  In  Germany,  they  may  take  charge  of  the  effects 
of  deceased  sailors."  102 

We  have  considered  on  a  former  page  the  right  of  a  consul, 
based  on  a  treaty  stipulation,  to  administer  upon  the  estate  of  a 
deceased  subject  of  the  sovereign  appointing  him  in  preference 
to  a  public  administrator  or  other  officer  authorized  by  the  law  of 
a  state.103 

§  453.  Shipping  and  seamen. — Various  treaties  between  the 
United  States  and  other  nations  contain  provisions  as  to  the 
duties  and  powers  of  consuls  relative  to  shipping  and  seamen. 
The  eighth  article  of  the  treaty  with  France  provides:  "The  re- 
spective consuls-general,  consuls,  vice-consuls,  or  consular  agents 
shall  have  exclusive  charge  of  the  internal  order  of  the  merchant 
vessel  of  their  nation,  and  shall  alone  take  cognizance  of  differ- 
ences which  may  arise,  either  at  sea  or  in  port,  between  the  cap- 
tain, officers,  and  crew,  without  exception,  particularly  in  refer- 
ence to  the  adjustment  of  wages  and  the  execution  of  contracts. 
The  local  authorities  shall  not,  on  any  pretext,  interfere  in  these 
differences,  but  shall  lend  forcible  aid  to  the  consuls  when  they 
may  ask  it,  to  arrest  and  imprison  all  persons  composing  the 
crew  whom  they  may  deem  it  necessarj^  to  confine.  Those  per- 

102  Consular     Kegulations     of     the  10:!  See  see.  202,  ante. 

United  States  (1896),  sec.  91,  p.  35. 


459  ACTION    OF    CONSUL    NOT    CONCLUSIVE.       [§§    454,    455 

sons  shall  be  arrested  at  the  sole  request  of  the  consuls,  addressed 
in  writing  to  the  local  authority,  and  supported  by  an  official 
extract  from  the  register  of  the  ship  or  the  list  of  the  crew,  and 
shall  be  held,  during  the  whole  time  of  their  stay  in  the  port,  at 
the  disposal  of  the  consuls.  Their  release  shall  be  granted  at  the 
mere  request  of  the  consuls,  made  in  writing.  The  expenses  of 
the  arrest  and  detention  of  those  persons  shall  be  paid  by  the  con- 
suls."  As  Congress  has  provided  a  mode  of  arrest  in  the  exe- 
cution of  treaties,105  this  must  be  regarded  as  the  only  means 
proper  to  be  adopted  for  the  purpose,  and  hence  the  officer 
named  is  the  only  one  authorized  to  make  the  arrest  on  the  requi- 
sition of  a  French  consul.  But  an  unauthorized  arrest  by  a 
state  official  will  not  entitle  a  seaman  to  a  discharge  on  habeas 
corpus,  when  brought  before  the  court,  because  the  irregularity 
of  the  arrest  is  cured  by  the  court  in  examining  into  the  case 
under  the  Revised  Statutes  providing  for  the  execution  of  treaties 
relating  to  consular  jurisdiction  over  the  crews  of  foreign  vessels 
in  the  waters  of  the  United  States.106 

§  454.  Action  of  consul  not  conclusive. — Where  a  libel  is  filed 
for  wages,  the  action  of  a  consul  in  discharging  a  seaman  in  a  for- 
eign port  is  not  conclusive.107  So,  where  an  American  consul  had 
seamen  arrested  for  desertion,  for  failure  to  appear  for  work  at 
the  proper  hour,  his  mere  certificate  that  the  men  had  deserted, 
without  any  record  of  an  examination  before  him,  was  held,  in 
a  suit  for  wages,  not  to  be  legal  evidence  of  desertion.108 

§  455.  American  seamen. — But  these  treaty  provisions  do  not 
refer  to  American  seamen.  Thus,  it  is  held  that  the  treaty  be- 
tween the  United  States  and  Germany  does  not  take  away  the 
jurisdiction  of  the  admiralty  courts  of  the  United  States  to  de- 
cide the  rights  of  an  American  seaman  entering  and  leaving  the 
service  of  a  German  vessel  in  the  United  States.109 

104  10  Stats,  at  Large,  992.  lor  Campbell     v.     Steamer     Uncle 

105  13    Stats,   at   Large,    121;    Rev.  Sam,  McAll,  77,  Fed.  Gas.  No.  2,372. 
Stats.,  sees.  4079-4081.  10S  Graves  v.  The  W.  F.  Babcock, 

106  Dallemagne   v.   Moisan,   197   TJ.  79  Fed.  92. 

S.  169,  25  Sup.  Ct.  Rep.  422,  49  L.  109  The   Neck,   138   Fed.    144.     See 

ed.  709;  Eev.  Stats.,  sees.  4079-4081,       17  Stats,  at  Large,  928. 
TJ.  S.  Comp.  Stats.  1901,  p.  2766. 


§§    456 4:58]  AMBASSADORS  AND   CONSULS.  460 

§  456.  Fees  for  prosecution  of  claim. — The  Revised  Statutes 
of  the  United  States  prohibit  a  person  holding  a  place  of  trust 
or  profit  under  the  government  from  acting  as  agent  for  the 
prosecution  of  a  claim  against  the  United  States.110  If  a  person 
enters  into  a  contract  with  another  to  assist  him  in  the  prosecu- 
tion of  the  claims  of  a  city  against  the  government,  and  in  a  brief 
time  subsequent  to  the  execution  of  the  contract  becomes  a  min- 
ister of  the  United  States  to  a  foreign  country,  and  holds  this 
position  during  the  prosecution  of  the  claim,  he  cannot  recover 
any  fee  for  its  prosecution.111  But  while  he  cannot  recover  any 
fee  for  his  services,  he  can,  upon  payment  of  the  claims,  recover 
from  his  associate  in  the  contract  any  attorney  fees  and  costs 
advanced  for  his  benefit.112 

§  457.  Judicial  notice  of  signature  and  seal. — The  court  takes 
judicial  notice  of  the  seal  and  signature  of  consular  officers.113 
Hence,  a  copy  of  a  corporation  contract  filed  in  England,  which 
is  certified  by  the  assistant  registrar  of  joint  stock  companies, 
and  to  which  is  attached  the  signature  of  a  London  notary  stating 
that  the  signature  is  genuine,  accompanied  by  the  signature  of 
the  vice  and  deputy  consul-general  of  the  United  States  at  Lon- 
don, under  his  seal  of  office,  is  properly  certified.114 

§  458.  Acknowledgments  and  affidavits  by  consular  officers. — 
By  the  Revised  Statutes  of  the  United  States,  power  is  conferred 
upon  consular  officers  to  perform  any  notarial  act  which  a  notary 
public  is  required  or  authorized  by  law  to  perform  in  the  United 
States.115  Under  the  provisions  of  a  code  of  a  state  declaring  that 
affidavits  and  depositions  may  be  made  and  taken  outside  of 
the  state  before  any  notary  public  or  other  person  authorized  to 
take  depositions,  it  is  held  that  a  consular  officer  is  a  notary 
public,  so  that  a  deposition  taken  by  him  is  admissible  in  evi- 
dence.116 An  acknowledgment  of  a  deed  and  mortgage  can  be 

110  Kev.    Stats.,    sec.    5498;    Comp.  114  Barber  v.  International  Co.   of 

Stats.  1901,  p.  3707.  Mexico,   73   Conn.   587,  48   Atl.   758. 

U1  Fox  v.  Willis,  24  Ky.  Law   Eep.  115  Eev.    Stats.,    sec.    1750;    U.    S. 

1773,  72  S.  W.  330;  Id.,  24  Ky.  Law  Comp.    Stats.,  p.  1196. 

Eep.  2173,  73  S.  W.  743.  11C  Browne  v.  Palmer,  66  Neb.  287, 

112  Fox  v.  Willis,  supra.  92  N.  W.  315. 

113  Barber  v.  International  Co.   of 
Mexico,  73  Conn.  587,  48  Atl.  758. 


461 


ACKNOWLEDGEMENTS  AND  AFFIDAVITS. 


[§  458 


taken  by  a  deputy  consul-general.117  The  word  "consul"  includes 
any  person  invested  by  the  government  with  the  functions  of 
consul-general,  vice  consul-general,  or  vice-consul.  An  acknowl- 
edgment before  a  consul-general  is  valid.118 


117  Stewart  v.  Linton,  204  Pa.  207, 
53    Atl.    744.     See,    also,    Evans    v. 
Lee,    11    Neb.    194;    Mott    v.    Smith, 
16   Cal.    533;    Brown   v.   Landon,   30 
Hun,  57. 

118  Morris  v.  Lenton,  61  Neb.  537, 
85    N.    W.    565.     It    is    held    that    a 
deputy  United  States  consul,  by  rea- 
son of  his  confidential  relations  with 
the    consul    and    on    the    ground    of 
public  policy,  is  not  qualified  to  act 
IP  a  commissioner  to  take  the  deposi- 


tion of  the  consul  issued  under  an 
act  of  Maryland  of  1773,  in  a  case 
in  which  the  consul  is  the  plaintiff, 
and  that  a  deposition  taken  by  the 
deputy  under  such  circumstances 
will  be  suppressed  if  it  is  shown  that 
the  defendant  was  ignorant  of  the 
fact  that  the  commissioner  was  the 
deputy  consul  at  the  time  when  the 
deposition  was  taken.  Massachusetts 
Mut.  Ace.  Assn.  v.  Dudley,  15  App. 
D.  C.  472. 


;§    459,    460]         NATURALIZATION  AND  EXPATRIATION.  462 


CHAPTER  XIV. 

NATURALIZATION  AND  EXPATRIATION. 

§  459.  Naturalization  and  expatriation. 

§  460.  Perpetual  allegiance. 

§  461.  American  doctrine. 

§  462.  Compulsory  military  service. 

§  463.  Claim  of  exemption  as  a  matter  of  comity. 

§  464.  Treaties  of  naturalization. 

§  465.  Other  treaties  on  same  subject. 

§  466.  Citizens  in  ceded  territory. 

§  467.  Effect  of  judgment. 

§  468.  Setting  aside  certificate  of  citizenship  under  recent  law. 

§  469.  Collective  naturalization  by  admission  of  a   state. 

§  470.  Expatriation  of  American  citizens. 

§  471.  Statute  of  1907. 

§  459.  Naturalization  and  expatriation. — It  is  not  proposed  to 
enter  at  length  into  a  discussion  of  the  questions  relating  to  nat- 
uralization and  expatriation.  So  far  as  naturalization  is  con- 
cerned, it  is  purely  a  matter  for  internal  regulation,  as  Congress 
may  say  what  class  of  persons  shall  or  shall  not  be  admitted  to 
citizenship,  and  upon  what  terms.  Many  questions  have  arisen 
as  to  the  acts  that  would  deprive  a  foreign-born  citizen  who  has 
become  naturalized  in  the  United  States  of  his  rights  of  citizen- 
ship when  he  had  left  the  United  States  either  for  a  temporary 
or  permanent  residence  abroad.  The  perplexing  questions  as  to 
what  acts  would  constitute  a  renunciation  of  American  citizen- 
ship which  formed  the  basis  of  much  diplomatic  correspondence 
have,  so  far  as  the  government  of  the  United  States  is  concerned, 
now  been  settled  by  legislation. 

§  460.  Perpetual  allegiance. — Frequent  disputes  have  arisen 
between  the  United  States  and  European  governments  which 
claimed  the  right  to  demand  military  service  from  persons  born 
within  their  allegiance  but  who  had  become  naturalized  citizens 
of  the  United  States.  The  doctrine  of  perpetual  allegiance  was 
thus  expressed  by  Lord  Greenville:  "No  British  subject  can, 
by  such  a  form  of  renunciation  as  that  which  is  prescribed  in  the 


UNIVERSITY 

OF 
463  ^jUFORtj^^MERICAN  DOCTRINE.  [§    461 

American  law  of  naturalization,  devest  himself  of  his  allegiance 
to  his  sovereign.  Such  a  declaration  of  renunciation  made  by 
any  of  the  king's  subjects  would,  instead  of  operating  as  a  pro- 
tection to  them,  be  considered  an  act  highly  criminal  on  their 
part."1  This  principle  was  not  admitted  by  the  United  States. 
In  1848  Mr.  Buchanan,  Secretary  of  State,  in  a  note  to  Mr.  Ban- 
croft, Minister  to  England,  said:  "Whenever  the  occasion  may 
require  it,  you  will  resist  the  British  doctrine  of  perpetual  allegi- 
ance, and  maintain  the  American  principle  that  British  native- 
born  subjects,  after  they  have  been  naturalized  under  our  laws, 
are,  to  all  intents  and  purposes,  as  much  American  citizens  and 
entitled  to  the  same  degree  of  protection  as  though  they  had 
been  born  in  the  United  States."  2 

§  461.  American  doctrine. — The  United  States  settled  the 
principle  to  prevail  in  this  country  by  declaring  that  "the  right 
of  expatriation  is  a  natural  and  inherent  right  of  all  people,  in- 
dispensable to  the  enjoyment  of  the  right  of  life,  liberty  and  the 
pursuit  of  happiness,"  and  that  "any  declaration,  instruction, 
opinion,  order,  or  decision  of  any  officer  of  the  United  States 
which  denies,  restricts,  impairs  or  questions  the  right  of  expatria- 
tion, is  declared  inconsistent  with  the  fundamental  principles  of 
the  republic."3  It  was  further  declared  that  "all  naturalized 
citizens  of  the  United  States,  while  in  foreign  countries,  are  en- 
titled to  and  shall  receive  from  this  government,  the  same  pro- 
tection of  persons  and  property  which  is  accorded  to  native-born 
citizens, ' ' 4  and  that  whenever  it  is  made  known  to  the  President 
"that  any  citizen  of  the  United  States  has  been  unjustly  deprived 
of  his  liberty,  by  or  under  the  authority  of  any  foreign  govern- 
ment, it  shall  be  the  duty  of  the  President  forthwith  to  demand 
of  that  government  the  reasons  of  such  imprisonment;  and  if  it 
;appears  to  be  wrongful  and  in  violation  of  the  rights  of  Ameri- 
can citizenship,  the  President  shall  forthwith  demand  the  re- 
llease  of  such  citizen,  and  if  the  release  so  demanded  is  unreason- 
ably delayed  or  refused,  the  President  shall  use  such  means,  not 

I    1  To  Mr.  King,  American  Minister,  3  Eev.     Stats.,     sec.     1999 ;     U.     S. 

bfarch     27,     1897,     American     State  Comp.  Stats.  1901,  1269. 

Papers,  For.  Bel.,  II,  148.  4  Eev.    Stats.,    sec.    2000;     Comp. 

-  47  Brit.  &  For.  State  Pap.  1236,  Stats.   1901,   1270. 
11237. 


§§    462,    463]          NATURALIZATION  AND  EXPATRIATION.  464 

amounting  to  acts  of  war,  as  he  may  think  necessary  and  proper 
to  obtain  or  effectuate  the  release."5  In  England  it  is  now,  by 
statute,  declared  that  a  British  subject  may  expatriate  himself.® 

§  462.  Compulsory  military  service. — The  question  has  arisen 
as  to  the  obligation  of  a  foreign  resident  to  render  compulsory 
military  service,  and  Mr.  Seward,  while  Secretary  of  State,  ex- 
pressed the  rule  to  be  that  ''No  alien-born  person  is  liable  to 
render  military  service  unless  he  has  been  naturalized  on  his  own 
application,  or  has  made  a  voluntary  declaration  on  oath  of  his 
intention  to  become  a  citizen  by  naturalization,  according  to  law, 
or  has  claimed  and  actually  exercised  the  political  right  of  voting 
as  a  citizen  of  the  United  States. ' ' 7  The  government  of  the 
United  States  during  the  Civil  War  claimed  that  all  persons  who 
had  voted  as  state  citizens  were  liable  to  conscription,  and  de- 
clared by  an  act  of  Congress  that  the  levy  should  include  "all 
persons  of  foreign  birth,  who  shall  have  declared  on  oath  their 
intention  to  become  citizens." 

But  where  there  is  no  treaty  stipulation  convening  the  case,  a 
citizen  of  the  United  States  who  is  a  resident  in  Chile  cannot  claim 
exemption  from  service  in  a  temporary  civic  guard  in  which  all 
residents  are  required  to  serve  by  law.8 

§  463.  Claim  of  exemption  as  a  matter  of  comity. — In  1873  Mr. 
Davis,  Assistant  Secretary  of  State,  said  that  there  was  no  treaty 
stipulation  between  Great  Britain  and  the  United  States  which  ex- 
empts the  citizens  or  subjects  of  either  party  from  military  duty 
in  the  forces  of  the  other  either  in  peace  or  war,  and  that  such 
exemption  could  not  be  claimed  as  a  matter  of  right.  But  "as 
a  matter  of  comity  and  reciprocity,  however,  we  certainly  can 
claim  them.  During  the  late  Civil  War  in  this  country,  there 
were  numerous  instances  where  British  subjects  were  drafted 
into  the  military  service  of  the  United  States,  but  were  subse- 
quently discharged  upon  the  application  of  the  British  Minister 
here.  The  only  cases  in  which  a  compliance  with  such  an  applica- 
tion was  refused  were  the  few  in  which  persons  of  that  nationality 

5  Rev.    Stats.,    sec.    2001;    U.  S.           8  Mr.  Fish,  Secretary  of  State,  to 
Comp.  Stats.  1901,  1270.  Mr.   Williamson,    No.    140,  June    13, 

6  33  &  34  Viet.  105,  c.  14.  1876,  MS.  Inst.  Chile,  XVI,  181. 

7  62  MS.  Dom.  Let.  333,  502. 


465  TREATIES    OF    NATURALIZATION.  [§§    464,    465 

had  voted  in  states  where  foreigners  not  fully  naturalized  ara 
allowed  that  privilege. ' ' 9 

§  464.  Treaties  of  naturalization. — A  treaty  relating  to  nat- 
uralization was  concluded  between  the  United  States  and  the 
North  German  Confederation  on  February  22,  1868.10  Similar 
treaties  were  made  with  Bavaria,  May  26,  1868 ; n  Baden,  July 
19,  1868  ;12  Wiirttemberg,  July  27,  1868;  and  Hesse,  August  1, 
1868. 13  On  May  26,  1869,  a  naturalization  convention  was  con- 
cluded between  the  United  States  and  Sweden  and  Norway, 
whereby  a  citizen  of  one  country  who  has  resided  in  the  other 
"for  a  continuous  period  of  at  least  five  years,"  and  has  become 
naturalized  is  recognized  as  a  citizen  of  the  country  of  his  adop- 
tion. In  a  protocol  accompanying  the  treaty  it  is  declared  that 
the  residence  of  five  years  shall  not  be  considered  a  prerequisite 
where  a  person  has  been  discharged  from  his  original  citizen- 
ship.14 

§  465.  Other  treaties  on  same  subject. — The  United  States 
and  Great  Britain,  by  a  convention,  signed  May  30,  1870,  recog- 
nize in  one  country  naturalization  acquired  in  the  other.15  In 
1870,  a  convention  was  entered  into  betAveen  the  United  States 
and  the  Austro-Hungarian  monarchy,  providing  for  the  nat- 
uralization of  citizens  of  the  respective  countries  after  an  unin- 
terrupted residence  of  five  years.  It  is  stipulated  that  a  natu- 
ralized citizen  of  one  party  on  return  to  the  territory  of  the 
other  shall  be  liable  to  trial  and  punishment  for  an  action  pun- 
ishable by  the  laws  of  his  country  committed  before  his  immi- 
gration, and  that  in  particular  a  former  citizen  of  the  Austro- 
Hungarian  monarchy  who,  under  the  treaty,  would  be  held  to  be 
an  American  citizen,  is  liable  to  trial  and  punishment  according 
to  the  laws  of  Hungary  for  nonfulfillment  of  military  duties. 
"1st.  If  he  has  emigrated,  after  having  been  drafted  at  the  time  of 
conscription,  and  thus  having  become  enrolled  as  a  recruit  for 
service  in  the  standing  army;  2d.  If  he  has  emigrated  whilst  he 

9  March  7,  1873,  69  MS.  Desp.  to  12  16  Stats,  at  Large,  371. 
Consuls,  254.  13  16  Stats,  at  Large,  473. 

10  15   Stats,   at   Large,   615.  14  17  Stats,  at  Large,  809. 

11  15  Stats,  at  Large,  661.  15  16  Stats,  at  Large,  775. 

Treaties — 30 


§    466]  NATURALIZATION  AND  EXPATRIATION.  466 

stood  in  service  under  the  flag,  or  had  leave  of  absence  only  for 
a  limited  time ;  3d.  If  having  a  leave  of  absence  for  an  unlimited 
time,  or  belonging  to  the  reserve  or  to  the  militia,  he  has  emi- 
grated after  having  received  a  call  into  service,  or  'after  a  pub- 
lic proclamation  requiring  his  appearance,  or  after  war  has 
broken  out."  The  treaty,  however,  provides  that  a  former  citi- 
zen of  that  country  naturalized  in  the  United  States,  who,  after 
his  emigration,  "has  transgressed  the  legal  provisions  or  military 
duty  by  any  acts  or  omissions  other  than  those  above  enumerated 
in  the  clauses  numbered  1,  2,  and  3,  can,  on  his  return  to  his 
original  country,  neither  be  held  subsequently  to  military  ser- 
vice, nor  remain  liable  to  trial  and  punishment  for  the  nonfulfill- 
ment of  his  military  duty. ' ' 1G  Similar  provisions  are  to  be 
found  in  the  treaties  with  European  powers  having  a  com- 
pulsory military  service.  A  convention  was  entered  into  between 
the  United  States  and  Belgium  in  1868,  providing  that  citizens 
of  one  country  naturalized  in  the  other  shall  be  deemed  citizens 
of  the  latter.17  A  similar  treaty  was  concluded  with  Denmark  in 
1872,18  and  with  Hayti  in  1902.19 

§  466.  Citizens  in  ceded  territory. — It  has  been  provided  gen- 
erally in  the  treaties  of  cession  by  which  the  United  States  has 
acquired  new  territory  that  those  who  were  citizens  of  such  ter- 
ritory before  cession  should  be  considered  citizens  of  the  United 
States.  This  branch  of  the  subject  has  been  considered  in  a 
preceding  section.20 

16  17  Stats,  at  Large,  833.  ated    thereto    by    the    laws    of    that 

17  16  Stats,  at  Large,  747.     As  to       country." 

military  service,  the  third  article  of  1S  17  Stats,  at  Large,  941. 

this   treaty   provides:    "Naturalized  19  33   Stats,   at  Large,   2101,  2157. 

citizens  of  either  contracting  party  20  See     sec.     295.     The     treaty     of 

who  shall  have  resided  five  years  in  1794   with   Great   Britain   stipulated 

the    country   which    has    naturalized  that  British  subjects  residing  in  the 

them  cannot  be  held  to  the  obliga-  territory    evacuated   by   the   British 

tion  of  military  service  in  their  or-  troops    who    continued    so    to    reside 

iginal  country,  or   to  incidental  ob-  without    declaring   at   any   time   be- 

ligation    resulting    therefrom,    in    the  fore     the    expiration     of    one     year 

event   of   their   return  to   it,   except  thereafter  their  intention  to  remain 

in  cases  of  desertion  from  organized  British     subjects     should     be     con- 

and  embodied  military  or  naval  ser-  sidered  American  citizens.     8  Stats. 

vice,  or  those  that    may    be    assimil-  at     Large,     116.     The     treaty    with 


467  EFFECT  OF  JUDGMENT.  [§§  467,  468 

§  467.  Effect  of  judgment. — An  order  of  court  admitting  an 
alien  to  citizenship  has  the  effect  of  a  judgment  of  court  and  *s 
entitled  to  the  same  consideration,  and  it  cannot  be  set  aside  ex- 
cept in  some  mode  recognized  by  law  for  setting  aside  judgments, 
as  it  possesses  the  same  qualities  as  any  other  judgment.21  Un- 
der the  prior  naturalization  act  it  was  held  that  a  certificate  of 
citizenship  could  not  be  set  aside  upon  the  ground  of  a  false  rep- 
resentation of  facts  to  the  court.22  A  record  of  naturalization 
cannot  be  impeached  collaterally.23 

§  468.  Setting  aside  certificate  of  citizenship  under  recent  law. 
The  naturalization  law  recently  passed  provides  that  "it  shall  be 
the  duty  of  the  United  States  district  attorneys  for  the  respective 
districts,  upon  affidavit  showing  good  cause  therefor,  to  institute 
proceedings  in  any  court  having  jurisdiction  to  naturalize  aliens 
in  the  judicial  district  in  which  the  naturalized  citizen  may  reside 
at  the  time  of  bringing  the  suit,  for  the  purpose  of  setting  aside 
and  canceling  the  certificate  of  citizenship  on  the  ground  of  fraud 
or  on  the  ground  that  such  certificate  was  illegally  procured.  In 
any  such  proceedings  the  party  holding  the  certificate  of  citizen- 
ship alleged  to  have  been  fraudulently  or  illegally  procured  shall 
have  sixty  days'  personal  notice  in  which  to  make  answer  to  the 
petition  of  the  United  States ;  and  if  the  holder  of  such  certificate 

France     by     which     Louisiana     was  2l  United  States  v.  ISTorsch,  42  Fed. 

ceded  declared  that  the  inhabitants  417;  Tinn  v.  U.  S.  District  Attorney, 

should     be     incorporated     into     the  J.48    Cal.  773,  113  Am.  St.  Eep.  354, 

Union  of  the  United  States,  and  ad-  84  Pae.  152;  Commonwealth  v.  Paper, 

mitted  as  soon  as  possible,  according  t    Brewst.    263;    In   re   McCoppin,   5 

to  the  principles  of  the  constitution,  Saw.  632,  Fed.  Cas.  No.  8713;  People 

to  the  enjoyment  of  all  the  rights  of  v.  McGowan,  77  111.  644,  20  Am.  Eep. 

American      citizens.     8      Stats.      at  254;  Spratt  v.  Spratt,  4  Pet.   (U.  S.) 

Large,     200.     In     the     treaty     with  408,    7   L.   ed.   902;    Stark   v.    Chesa- 

Spain  by  which  Florida   was  ceded  peake  Ins.   Co.,  7  Cranch,  420,  3  L. 

the    provision    was    that    the    inhab-  ed.   391. 

itants  "  shall  be  incorporated  in  the  22  United    States    v.     Gleason,    78 

Union  of  the  United  States  as  soon  Fed.   397;    Pintsch  C.   Co.  v.   Bergin, 

as  may  be  consistent  with  the  prin-  84  Fed.  141. 

ciples    of    the    Federal    Constitution,  -"i  People     v.     McGowan,     77     111. 

and  admitted  to  the  enjoyment  of  all  647,  20  Am.  Eep.  255;  State  v.  Mac- 

the  privileges,  rights  and  immunities  donald,    24   Minn.    59;    McCarthy   v. 

of     the      citizens      of      the     United  Marsh,  5  N.  Y.  263. 
States."     8  Stats,  at  Large,  252. 


§    469]  NATURALIZATION  AND  EXPATRIATION.  468 

be  absent  from  the  United  States  or  from  the  district  in  which 

• 

he  last  had  his  residence,  such  notice  shall  be  given  by  publica- 
tion in  the  manner  provided  for  the  service  of  summons  by  pub- 
lication or  upon  absentees  by  the  laws  of  the  state  or  the  place 
where  such  suit  is  brought. ' ' 24  This  provision  applies  not  only 
to  certificates  of  citizenship  issued  under  the  act,  but  applies 
also  to  all  certificates  issued  before  its  passage.25 

§  469.     Collective  naturalization  by  admission  of  a  state.— 

When  a  state  is  admitted  on  an  equal  footing  with  the  original 
states  in  all  respects  whatever,  the  admission  will  cause  the  adop- 
tion as  citizens  of  the  United  States  of  those  made  members  of 
the  political  community  by  Congress,  and,  who  in  the  formation 
of  the  new  state,  are  recognized  as  such  by  the  consent  of  Con- 
gress; that  is,  a  collective  naturalization  may  be  accomplished  in 
the  admission  of  a  state,  in  accordance  with  the  intention  of 
Congress  and  the  inhabitants  of  the  state  seeking  admission.26 
When  Texas  was  admitted  as  a  state  all  the  citizens  of  the  former 
republic  became  citizens  of  the  United  States  without  any  ex- 
press declaration,  as  it  was  admitted  on  an  equal  footing  with 
the  original  states.27  As  stated  by  Mr.  Justice  Matthews:  "It 
rests  with  Congress  to  say  whether,  in  a  given  case,  any  of  the 
people,  resident  in  the  territory,  shall  participate  in  the  election 
of  its  officers  or  the  making  of  its  laws;  and  it  may,  therefore, 
take  from  them  any  right  of  suffrage  it  may  have  previously  con- 
ferred, or  at  any  time  modify  or  abridge  it,  as  it  may  deem  ex- 
pedient. The  right  of  local  self-government  as  known  to  our 
system  as  a  constitutional  franchise  belongs,  under  the  Constitu- 
tion, to  the  states  and  to  the  people  thereof,  by  whom  that  Con- 
stitution was  ordained,  and  to  whom  by  its  terms  all  power  not 
conferred  by  it  upon  the  government  of  the  United  States  was 
expressly  reserved.  The  personal  and  civil  rights  of  the  inhabi- 
tants of  the  territories  are  secured  to  them,  as  to  other  citizens,  by 
the  principles  of  constitutional  liberty  which  restrain  all  the 

24  34  Stats,  at  Large,  596,  sec.  15.  at  Large,  108;  McKinney  v.  Saviego, 

25  34  Stats,  at  Large,  596,  sec.  15.  59  U.  S.    (18  How.)    235,   15  L.  ed. 

26  Boyd  v.  State  of  Nebraska,  143  365;  Cryer  v.  Andrews,  11  Tex.  170; 
U.  S.  158,  12  Sup.  Ct.  Eep.  375,  36  L.  Barren  v.  Kelly,  31  Tex.  476;  Carter 
ed.  103.  v.  Territory,  1  N.  Mex.  317. 

27  5  Stats,  at  Large,  798;   9  Stats. 


469  EXPATRIATION    OF    AMERICAN    CITIZENS.       [§§    470,    471 

agencies  of  government,  state  and  national;  their  political  rights 
are  franchises  which  they  hold  as  privileges  in  the  legislative 
discretion  of  the  Congress  of  the  United  States.''28  In  various 
treaties  with  Indian  tribes  provisions  have  been  made  for  such  as 
desired  to  remain  and  become  citizens  of  the  United  States.29 

§  470.  Expatriation  of  American  citizens. — The  question  of 
expatriation  or  renunciation  of  American  citizenship  acquired  by 
foreign-born  residents,  who  returned  to  their  own  country  has 
been  the  object  of  much  diplomatic  correspondence,  and  the  prin- 
ciples to  be  applied  are  not  well  defined.  Finally  to  lay  down 
definite  rules,  statutes  have  been  passed  defining  the  acts  that 
shall  be  deemed  to  constitute  acts  of  expatriation.  In  the  re- 
cent naturalization  act  it  is  provided  that  if  any  alien  who  has 
acquired  a  certificate  of  citizenship  shall,  within  five  years  after 
its  issuance,  return  to  the  country  of  his  nativity,  or  go  to  any 
other  foreign  country,  and  take  permanent  residence  therein,  it 
shall  be  considered  prima  facie  evidence  of  a  lack  of  intention  on 
his  part  to  become  a  permanent  citizen  of  the  United  States  at 
the  time  of  filing  his  application  for  citizenship,  and,  in  the  ab- 
sence of  countervailing  evidence,  it  shall  be  sufficient  to  authorize 
the  cancellation  of  his  certificate,  as  fraudulent.30 

§  471.  Statute  of  1907.— In  March,  1907,  a  statute  was  en- 
I  acted  by  Congress  which  made  express  declaration  as  to  what 
|  acts  should  constitute  renunciation  of  citizenship.  This  statute 
i  provides  that  an  American  citizen  shall  be  considered  as  having 

28  Murphy   v.    Bamsey,    114   U.    S.  hered  to  the  cause  of  Independence 
j,  15,  44,   5   Sup.   Ct.   Kep.   747,   29  L.  up    to   July  4,    1776,   were   invested 
I  ed.  47,  57.  with    the    privileges    of    citizenship 

29  As  to  the  Choctaws,  see  7  Stats.  by   the    Declaration.     United   States 
I  at  Large,  335;    as  to  the  Cherokees,  v.  Eitchie,  58  U.  S.  (17  How.)  525,  15 
•  7    Stats,    at   Large,   483;    as   to    the  L.   ed.   236;   Ingles  v.   Sailor's  Snug 
ji  Slockbridge  tribe,  5  Stats,  at  Large,  Harbor,  28  U.  S.   (3  Pet.)    99,  7  L. 
1.647;   as  to   the  Brothertown  Indians  ed.  617.     See,  also,  Desbois'  Case,  2 
I  of  Wisconsin,  5  Stats,  at  Large,  349.  Mart.    (La.)    185;    United   States   v. 

All  white  persons  or  persons  of  Laverty,  3  Mart.  (La.)  733,  Fed.  Gas. 

ji  European  descent  who  were  born  in  No.  15,569a ;  American  Ins.  Co.  v. 

|.any  of  the  thirteen  colonies,  who  Canter,  26  U.  S.  (I  Pet.)  511,  7  L. 

had  resided  or  been  adopted  many  ed.  242. 

of  them  prior  to   1776  and  had  ad-  30  Stats,   at  Large,  601,  sec.   15. 


§    471]  NATURALIZATION  AND  EXPATRIATION.  470 

expatriated  himself  when  he  has  been  naturalized  in  any  foreign 
state,  or  when  he  has  taken  an  oath  of  allegiance  to  any  foreign 
state.  If  he  shall  have  resided  for  two  years  in  the  foreign 
state  from  which  jie  came,  or  for  five  years  in  any  foreign  state, 
it  shall  be  presumed  that  he  has  ceased  to  be  an  American  citi- 
zen, and  the  place  of  his  general  abode  shall  be  deemed  his  place 
of  residence  during  such  years,  but  he  may  overcome  this  pre- 
sumption by  presenting  satisfactory  evidence  to  a  diplomatic  or 
consular  officer  of  the  United  States,  under  such  rules  and  regu- 
lations as  may  be  prescribed  by  the  Department  of  State.  No 
American  citizen,  however,  shall  be  allowed  to  expatriate  himself 
when  the  United  States  is  at  war.  An  American  woman  who 
marries  a  foreigner  takes  the  nationality  of  her  husband,  but  at 
the  termination  of  the  marital  relation  she  may  resume  her  Ameri- 
can citizenship,  if  abroad,  by  registering  as  an  American  citizen 
within  one  year  with  a  consul  of  the  United  States,  or  by  re- 
turning to  reside  in  the  United  States,  or,  if  residing  in  the  United 
States  at  the  termination  of  the  marital  relation,  by  continuing 
to  reside  therein.  A  foreign  woman  who  acquires  American  citi- 
zenship by  marriage  to  an  American  shall  be  assumed  to  retain 
the  same  after  the  termination  of  the  marital  relation,  if  she  con- 
tinues to  reside  in  the  United  States,  unless  she  makes  a  formal 
renunciation  thereof  before  a  court  having  jurisdiction  to  natural- 
ize aliens ;  or  if  she  resides  aboard,  she  may  retain  her  citizenship 
by  registering  as  such  before  a  United  States  consul  within  one 
year  after  the  termination  of  such  marital  relation. 

A  child  born  within  the  United  States  of  alien  parents  shall  be 
deemed  a  citizen  of  the  United  States  by  virtue  of  the  naturaliza- 
tion of  the  parents  or  by  his  resumption  of  American  citizenship. 
But  such  naturalization  or  resumption  must  take  place  during  the 
minority  of  the  child.  The  statute  further  provides  that  the  citi- 
zenship of  such  minor  child  shall  begin  at  the  time  such  minor 
child  begins  to  reside  permanently  in  the  United  States.  Chil- 
dren born  outside  the  limits  of  the  United  States,  who  are  citi- 
zens thereof  in  accordance  with  the  provisions  of  the  Revised 
Statutes,31  and  who  continue  to  reside  outside  of  the  United 
States,  are,  in  order  to  receive  the  protection  of  the  government, 
required,  upon  reaching  the  age  of  eighteen  years,  to  record  at 

•-1  Rev.  Stats.,  sec.  1993. 


471 


STATUTE  OF   1907. 


[§  471 


an  American  consulate  their  intention  to  become  residents  and 
remain  citizens  of  the  United  States,  and  are  further  required  to 
take  the  oath  of  allegiance  to  the  United  States  upon  attaining 
their  majority.  Duplicates  of  any  evidence,  registration  or  other 
acts  required  by  the  statute  are  to  be  filed  with  the  Department 
of  State  for  record.32 

32  Stats,  at  Large,  1228. 


RESPONSIBILITY    OF    GOVERNMENT    FOR    MOB    VIOLENCE.       472 


CHAPTER  XV. 

RESPONSIBILITY  OF  GOVEKNMENT  FOR  MOB  VIOLENCE. 

§  472.  General  comments. 

§  473.  Property  of  consul  injured  through  negligence. 

§  474.  Punishment   of   violation   of   treaty   right — President    Harrison's   rec- 
ommendation. 

§  475.  Introduction  of  bill  to  carry  out  recommendation. 

§  476.  President  McKinley's  recommendation. 

§  477.  Renewal  of  recommendation. 

§  478.  President  Roosevelt's  recommendation. 

§  479.  Hostility  toward  Japanese. 

§  480.  Claims  made  by  the  United  States. 

§  481.  Official  interference  limited  to  tortious  acts. 

§  482.  Rules  of  Department  of  State. 

§  483.  Redress  for  injuries — Wheeloek's  case. 

§  484.  Offer  of  settlement. 

§  485.  Case  of  William  Wilson. 

§  486.  Zambrano's  case. 

§  487.  Case  of  Dr.  Shipley. 

§  488.  Grounds  for  interference. 

§  489.  Courts  open  for  redress. 

§  490.  Montijo  controversy. 

§  491.  Federal  government  of  Colombia  responsible  for  acts  of  states. 

§  492.  Same  practice  in  the  United  States. 

§  493.  Constitution  of  Colombia  prohibiting  interference  with  states. 

§  494.  An  embarrassing  precedent. 

§  495.  Department    of    State    not    a  court  of  error. 

§  496.  Demands  upon  the  United  States. 

§  497.  Destruction  of  French  privateers  at  Savannah. 

§  498.  Contention  of  France. 

§  499.  Position  of  the  United  States. 

§  500.  New  Orleans  and  Key  West  riots  in  1851. 

§  501.  Distinction  between  rights  of  consul  and  resident  foreigners. 

§  502.  Appropriation  by  Congress. 

§  503.  Explanations  of  appropriation. 

§  504.  Damages  for  destruction  of  property. 

§  505.  The  steamer  "Caroline." 

§  506.  Arrest  of  McLeod. 

§  507.  Diplomatic  action. 

§  508.  Opinion  of  John  Quincy  Adams. 

§  509.  Principle  of  public  law  admitted. 


473      RESPONSIBILITY    OF    GOVERNMENT    FOR    MOB    VIOLENCE. 

Federal  statute  enacted. 

Attacks  on  Chinese  at  Denver. 

Views  of  Mr.  Evarts,  Secretary  of  State. 

Compensation  to  owners  of  property. 

Attack  on  Chinese  at  Kock  Springs. 

Case  of  territory. 

American   demands  on   China. 

Views  of  Mr.  Bayard,  Secretary  of  State. 

Incident  devoid  of  national  character. 

China  closed  to  residence. 

No  reciprocity  intended. 

System  of  American  government  known  to  China. 

President  Cleveland's  special  message. 

Views  of  Senator  Edmunds. 

Other  allowances  for  injuries  to  Chinese  residents. 

Explanation  of  treaty. 

Mafia  riots  and  lynching  at  New  Orleans. 

Demands  of  the  Italian  government. 

Withdrawal  of  American  Minister. 

Tender  of  indemnity. 

Suits    to    recover   damages. 

Killing  of  Italian  subjects  in  Colorado  in  1895. 

Variance  between  consul  and  ambassador. 

Action  of  the  United  States. 

Lynching  of  Italians  at  Hahnville. 

Government  citizen's  agent. 

Contention   of   Italian  ambassador. 

Italians  voting. 

Subject  closed  by  appropriation. 

Renunciation   of    Italian   allegiance. 

Other  lynching  of  Italians. 

Wounding  of  a  British  subject  at  New  Orleans. 

Appropriation  by  Congress. 

Hanging   of   a   Mexican   in   California. 

Responsibility  of  government  for  boycott. 

Responsibility  of  municipal  corporation  for  damages  by  mobs. 

Liability  imposed  by  statute. 

Reputation  of  deceased. 

Participation  by  owner. 

Notice  to  be  given. 

Immaterial  ruling. 

Sufficient  time  to  give  notice. 

Constitutionality  of  such  statutes. 

Liberal  construction. 

Common  purpose  of  crowd. 


§§472,473]     RESPONSIBILITY  OF  GOVERNMENT  FOB  MOB  VIOLENCE.    474 

§  472.  General  comments. — Several  cases  have  occurred  in  the 
United  States  where  foreign  citizens  have  been  injured  or  killed 
by  the  action  of  uncontrolled  mobs,  and  when  indemnity  has 
been  asked  by  their  governments,  the  United  States  has  con- 
sistently contended  that  it  was  not  compelled  to  make  indemnity, 
save  in  those  special  cases,  such  as  an  attack  on  the  official  rep- 
resentatives of  a  foreign  government,  or  where,  by  virtue  of  a 
special  clause  in  a  treaty,  there  rested  upon  the  government  a 
special  duty  of  protection.  Still,  Congress  has  appropriated 
money,  in  many  instances,  as  indemnity  to  the  sufferer  or  his  heirs, 
always  stating,  however,  that  such  appropriations  were  made  out 
of  humane  consideration  and  not  as  an  acknowledgment  of  lia- 
bility. 

In  1802  Attorney  General  Lincoln  announced:  "By  the  law  of 
nations,  if  the  citizens  of  one  state  do  an  injury  to  the  citizens  of 
another,  the  government  of  the  offending  party  ought  to  take 
every  reasonable  measure  to  cause  reparation  to  be  made  by  the 
offender.  But  if  the  offender  is  subject  to  the  ordinary  processes 
of  law,  it  is  believed  this  principle  does  not  generally  extend  to 
oblige  the  government  to  make  satisfaction  in  case  of  the  inability 
of  the  offender."1 

Accordingly,  where  an  American  vessel  seized  an  alleged  Dan- 
ish vessel  as  French  property,  on  the  south  side  of  the  Island  of 
San  Domingo,  and  while  awaiting  examination  under  the  Ameri- 
can flag  a  British  ship  seized  the  Danish  vessel  too,  conveyed 
her  to  Jamaica  and  there  condemned  her,  it  was  ruled  that  in- 
asmuch as  the  first  captors  were  not  liable  for  capturing  and  hold- 
ing the  vessel  long  enough  for  examination,  nor  for  the  second  cap- 
ture, and  as  no  liability  rests  upon  the  United  States  even  for  un- 
lawful captures  by  its  subjects,  the  United  States  was  not  obli- 
gated to  indemnify  the  Danish  owner.2 

§  473.  Property  of  consul  injured  through  negligence. — If, 
owing  to  the  negligence  of  a  foreign  government,  the  personal 
property  of  a  consul  of  the  United  States  is  injured,  such  govern- 
ment is  liable  for  damages.3  In  1875  Mr.  Fish,  Secretary  of 

1  1  Op.  Atty.  Gen.  (1802)  106,  107.       State,  to  Mr.  Mathews,  January  16, 

2  Lincoln,    1    Op.    Atty.    Gen.    106.       1883;  MS.  Inst.  Barb.  Powers,  XVI, 

3  Mr.    Frelinghuysen,    Secretary    of       103. 


475         PUNISHMENT   OF   VIOLATION    OF    TREATY    RIGHT.        [§§    474,    475 

State,  in  correspondence  with  the  Mexican  Minister  relative  to 
the  lynching  of  a  number  of  Mexican  shepherds  in  Texas,  as- 
sumed the  position  that  a  government  is  not  "answerable  in  pe- 
cuniary damages  for  the  murder  of  individuals  by  other  indi- 
viduals within  its  jurisdiction;"  and  that  while  it  was  the  duty 
of  a  government  to  prosecute  such  offenders  according  to  law  by 
all  means  at  its  command,  still,  if  this  duty  were  honestly  and 
diligently  performed,  the  obligations  of  the  government  were  ful- 
filled.4 In  1888  Mr.  Bayard,  Secretary  of  State,  declared  that 
the  position  taken  by  the  Department  of  State,  as  defined  in  Mr. 
Fish's  notes,  was  still  believed  to  be  sound  in  international  law.5 

§  474.  Punishment  of  violation  of  treaty  right — President 
Harrison's  recommendation. — Congress  has  passed  no  law  mak- 
ing the  violation  of  the  treaty  rights  of  aliens  a  crime  cognizable 
in  the  federal  courts,  though  it  has  often  been  urged  to  do  so. 
In  his  annual  message  of  December  9,  1891,  President  Harri- 
son called  attention  to  this  defect  in  our  laws,  and  said:  "It 
would,  I  believe,  be  entirely  competent  for  Congress  to  make  of- 
fenses against  the  treaty  rights  of  foreigners  domiciled  in  the 
United  States  cognizable  in  the  Federal  Courts.  This  has  not, 
however,  been  done,  and  the  Federal  officers  and  courts  have  no 
power  in  such  cases  to  intervene  either  for  the  protection  of  a 
foreign  citizen  or  for  the  punishment  of  his  slayers.  It  seems  to 
me  to  follow,  in  this  state  of  the  law,  that  the  officers  of  the  state 
charged  with  police  and  judicial  powers  in  such  cases  must,  in 
the  consideration  of  international  questions  growing  out  of  such 
incidents,  be  regarded  in  such  sense  as  Federal  agents  as  to  make 
this  government  answerable  for  their  acts  in  cases  where  it 
would  be  answerable  if  the  United  States  had  used  its  constitu- 
tional power  to  define  and  punish  crimes  against  treaty  rights." 

t 

§  475.  Introduction  of  bill  to  carry  out  recommendation. — 
Conformably  to  these  suggestions,  a  bill  was  introduced  in  the 
Senate  March  1,  1892,  and  favorably  reported  March  30,  1892, 
providing  that  any  act  committed  in  any  state  or  territory  in  vio- 
lation of  the  rights  of  a  citizen  or  subject  of  a  foreign  country 
secured  to  such  citizen  or  subject  by  treaty  between  the  United 

*  For.  Eel.  1875,  II,  973.  9  For.  Eel.  1888,  II,  1308. 


§§  476-478 J     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    476 

States  and  such  foreign  country  and  constituting  a  crime  under 
the  laws  of  the  State  or  Territory,  shall  constitute  a  like  crime 
against  the  United  States,  and  be  cognizable  in  the  federal 
courts.  Congress,  however,  failed  to  make  the  bill  a  law. 

§  476.  President  McKinley's  recommendation. — President  Mc- 
Kinley,  in  his  message  of  December  5,  1889,  asked  that  the  sub- 
ject be  taken  up  anew,  and  stated  that  the  necessity  for  some 
such  provision  was  apparent.  "Precedent  for  constituting  a 
Federal  jurisdiction  in  criminal  cases,"  said  he,  "where  aliens  are 
sufferers,  is  rationally  deducible  from  the  existing  statute,  which 
gives  to  the  district  and  circuit  courts  of  the  United  States  juris- 
diction of  civil  suits  brought  by  aliens  where  the  amount  in- 
volved exceeds  a  certain  sum.  If  such  jealous  solicitude  be  shown 
for  alien  rights  in  cases  of  merely  civil  and  pecuniary  import, 
how  much  greater  should  be  the  public  duty  to  take  cognizance 
of  matters  affecting  the  life  and  rights  of  aliens  under  the  settled 
principles  of  international  law  no  less  than  under  treaty  stipula- 
tion, in  cases  of  such  transcendent  wrongdoing  as  mob  murder, 
especially  when  experience  has  shown  that  local  justice  is  too 
often  helpless  to  punish  the  offenders. ' '  ° 

§  477.  Renewal  of  recommendation. — In  his  annual  message  of 
December  3,  1900,  President  McKinley  renewed  the  recommenda- 
tions that  he  had  made  in  the  preceding  year  for  the  extension 
to  the  federal  courts  of  jurisdiction  in  this  class  of  cases,  where 
the  ultimate  responsibility  of  the  federal  government  may  be 
involved,  and  declared:  "It  is  incumbent  upon  us  to  remedy  the 
statutory  omission  which  has  led,  and  may  again  lead,  to  such 
untoward  results.  I  have  pointed  out  the  necessity  and  the  prec- 
edent for  legislation  of  this  character.  Its  enactment  is  a  simple 
measure  of  provisory  justice  toward  the  nations  with  which  we 
as  a  sovereign  equal  make  treaties  requiring  reciprocal  observ- 


§  478.  President  Roosevelt's  recommendation. — In  his  an- 
nual message  of  December,  1906,  President  Roosevelt  spoke  of 
the  necessity  of  international  morality,  and  declared  that  it  should 

8  For  Eel.  1889,  XXII.  T  For.  Eel.  1900,  XXII. 


477  HOSTILITY   TOWARD    JAPANESE.  [§    479 

be  our  steady  aim  to  raise  the  ethical  standard  of  national  ac- 
tion, to  the  same  extent  as  we  strive  to  raise  the  ethical  standard 
of  individual  actions,  and  that  it  was  our  duty  not  only  to 
treat  all  nations  fairly,  but  also  to  treat  with  justice  and 
goodwill  all  immigrants  who  came  to  the  United  States  under  the 
law.  He  said:  "Whether  they  are  Catholic  or  Protestant,  Jew  or 
Gentile;  whether  they  come  from  England  or  Germany,  Russia, 
Japan  or  Italy,  matters  nothing.  All  we  have  a  right  to  ques- 
tion is  the  man's  conduct.  If  he  is  honest  and  upright  in  his 
dealings  with  his  neighbor  and  with  the  State,  then  he  is  en- 
titled to  respect  and  good  treatment.  Especially  do  we  need  to 
remember  our  duty  to  the  stranger  within  our  gates.  It  is  the 
sure  mark  of  a  low  civilization,  a  low  morality,  to  abuse  or  dis- 
criminate against  or  in  any  way  humiliate  such  stranger  who  has 
come  here  lawfully  and  who  is  conducting  himself  properly.  To 
remember  this  is  incumbent  on  every  American  citizen,  and  it  is 
of  course  peculiarly  incumbent  on  every  Government  official, 
whether  of  the  nation  or  of  the  several  states."  8 

§  479.  Hostility  toward  Japanese. — The  President  stated  that 
he  was  prompted  to  say  this  on  account  of  the  attitude  of 
hostility  assumed  here  and  there  toward  the  Japanese  in  this 
country.  He  spoke  of  our  international  obligations,  and  as- 
serted that  one  of  the  great  embarrassments  attending  their 
performance  was  the  inadequacy  of  the  statutes  of  the  United 
States,  and  proceeded:  "They  fail  to  give  to  the  National  Gov- 
ernment sufficiently  ample  power,  thru  United  States  courts 
and  by  the  use  of  the  Army  and  Navy,  to  protect  aliens  in  the 
rights  secured  to  them  under  solemn  treaties  which  are  the 
law  of  the  land.  I  therefore  earnestly  recommend  that  the 
criminal  and  civil  statutes  of  the  United  States  be  so  amended 
and  added  to  as  to  enable  the  President,  acting  for  the  United 
States  Government,  which  is  responsible  in  our  international  rela- 
tions, to  enforce  the  rights  of  aliens  under  treaties.  Even  as  the 
law  now  is  something  can  be  done  by  the  Federal  Government 
toward  this  end,  and  in  the  matter  now  before  me  affecting  the 
Japanese,  everything  that  it  is  in  my  power  to  do  will  be  done, 
and  all  the  forces,  military  and  civil,  of  the  United  States  which 

8  Cong.    Eecord,    Vol.    41,    No.    2,  Dec.    4,    1906;   p.   32. 


§§  480,  481]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    478 

I  may  lawfully  employ  will  be  so  employed.  There  should,  how- 
ever, be  no  particle  of  doubt  as  to  the  power  of  the  National 
Government  completely  to  perform  and  enforce  its  own  obliga- 
tions to  other  nations.  The  mob  of  a  single  city  may  at  any  time 
perform  acts  of  lawless  violence  against  some  class  of  foreigners 
which  would  plunge  us  into  war.  That  city  by  itself  would  be 
powerless  to  make  defense  against  the  foreign  power  thus  as- 
saulted, and  if  independent  of  this  Government  it  would  never 
venture  to  perform  or  permit  the  performance  of  the  acts  com- 
plained of.  The  entire  power  and  the  whole  duty  to  protect  the 
offending  city  or  the  offending  community  lies  in  the  hands  of 
the  United  States  Government.  It  is  unthinkable  that  we  should 
continue  a  policy  under  which  a  given  locality  may  be  allowed 
to  commit  a  crime  against  a  friendly  nation,  and  the  United  States 
Government  limited,  not  to  preventing  the  commission  of  the 
crime,  but,  in  the  last  resort,  to  defending  the  people  who  have 
committed  it  against  the  consequences  of  their  own  wrong- 
doing."9 

§  480.  Claims  made  by  the  United  States.— The  United  States 
has  in  many  instances  made  demands  upon  foreigri  governments 
for  redress  and  indemnity  for  outrages  committed  on  American 
citizens.  Mr.  Everett,  as  Secretary  of  State,  maintained  in  1853 
that  the  government  of  Chile  was  responsible  to  the  United  States 
for  the  spoliation  of  property,  by  officers  of  Chile,  belonging  to 
citizens  of  the  United  States.10 

Mr.  Adee,  Acting  Secretary  of  State,  in  a  letter  to  the  Italian 
Ambassador,  declared:  "The  general  rule  of  international  law  ob- 
served by  the  United  States  is  that  sovereigns  are  not  liable  in 
diplomatic  procedure  for  damages  occasioned  by  the  misconduct 
of  petty  officials,  and  agents  acting  out  of  the  range  not  only  of 
their  real,  but  of  their  apparent  authority."  n 

§  481.  Official  interference  limited  to  tortious  acts. — It  has 
been  the  practice  of  the  United  States  to  limit  its  official  interfer- 
ence for  the  recovery  of  indemnity  from  foreign  governments  to 

9  Cong.    Eecord,    vol.    41,    No.    2,       to  Mr-   Carcallo,  February  23,   1853, 

MS.  Notes  to  Chile,  VI,  65. 
Dec.  4,  1906,  p.  32.  „  ^  ^  ^  ^ 

'•  Mr.  Everett,  Secretary  of  State,       452)  No_  ^  Angust  14_  J900 


479     OFFICIAL  INTERFERENCE  LIMITED  TO  TORTIOUS  ACTS.   [§  481 

tortious  acts  committed  under  their  authority  against  the  persons 
and  property  of  its  citizens.  In  the  case  of  contracts,  a  different 
rule  is  observed.  Where  it  is  claimed  that  a  contract  has  been 
violated,  the  practice  has  been  not  to  interfere,  unless  the  cir- 
cumstances are  extremely  peculiar.  Even  then  restrictions  are 
confined  to  instructing  the  diplomatic  agents  of  this  country  to 
use  their  good  offices  in  behalf  of  the  American  citizens  concerned. 

Mr.  Marcy,  Secretary  of  State,  writing  to  Mr.  Clay,  Minister 
to  Peru,  in  1855  asserted  that  without  specific  instructions  no 
diplomatic  agent  of  the  United  States  ought  to  take  part  officially 
in  alleged  breaches  by  a  foreign  government  of  contracts  with 
citizens  of  the  United  States,  and  stated  that  the  reason  for  the 
course  was  obvious.  "It  does  not  comport  with  the  dignity  of 
any  government  to  make  a  demand  upon  another  which  might 
not  ultimately,  on  its  face,  warrant  a  resort  to  force  for  the  pur- 
pose of  compelling  a  compliance  with  it.  Such  a  course  cannot, 
under  this  Government,  be  adopted  without  authority  from  Con- 
gress, and  it  is  almost  impossible  to  imagine  any  contract  or  any 
circumstances  attending  the  infraction  of  one  by  a  foreign  govern- 
ment which  would  induce  Congress  to  confer  such  an  authority 
upon  the  President. ' ' 12 

And  Mr.  Buchanan,  Secretary  of  State,  said:  "Our  citizens 
go  abroad  over  the  whole  world  and  enter  into  contracts  with 
all  foreign  governments.  In  doing  this  they  must  estimate  the 
character  of  those  with  whom  they  contract  and  assume  the 
risk  of  their  ability  and  will  to  execute  their  contracts.  Upon 
a  different  principle,  it  would  become  the  duty  of  the  Govern- 
ment of  our  country  to  enforce  the  payment  of  loans  made  by 
ts  citizens  and  subjects  to  the  government  of  another  country. 
This  might  prove  exceedingly  inconvenient  to  some  of  the  States 
of  this  Union,  as  well  as  to  other  sovereign  States. ' ' 13 

2  MS.  Inst.  Peru,  XV,  159,  May  of  wrong  and  injury  to  persons  and 
24,  1855;  6  Moore  Int.  L.  D.  709.  property,  such  as  the  common  law 
13  Mr.  Buchanan  to  Mr.  Ten  Eyck,  denominates  torts  and  regards  as  in- 
yommissioner  to  Hawaii  August  28,  flicted  by  force,  and  not  the  result 
1848,  MS.  Inst.  Hawaii,  II,  1;  6  of  voluntary  engagements  or  con- 
Moore  Int.  L.  D.  709.  Mr.  Pish,  tracts. 

Secretary  of  State,  said:  "Our  long-  "In  cases  founded  upon  contract, 

settled  policy  and  practice  has  been  the  practice  of  this  Government  is  to 

to    decline    the    formal    intervention  confine  itself  to  allowing  its  minister 

of  the   Government   except   in   cases  to  exert  his  friendly  good  offices  in 


482]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  480 


§  482.  Rules  of  Department  of  State.— Mr.  Bayard,  while 
Secretary  of  State,  declared  that  an  appeal  by  one  sovereign  on 
behalf  of  a  subject  to  secure  from  another  sovereign  the  pay- 
ment of  a  debt  claimed  as  due  to  such  subject  was  the  exercise 
of  a  very  delicate  and  peculiar  prerogative,  ''which,  by  prin- 
ciples definitely  settled  in  this  Department,  is  placed  under  the 
following  limitations : 

"1.  All  that  our  Government  undertakes,  when  the  claim  is 
merely  contractual,  is  to  interpose  its  good  offices ;  in  other  words, 
to  ask  the  attention  of  the  foreign  sovereign  to  the  claim;  and 
this  is  only  done  when  the  claim  is  one  suspectible  of  strong  and 
clear  proof. 

"2.  If  the  sovereign  appealed  to  denies  the  validity  of  the 
claim  or  refuses  its  payment,  the  matter  drops,  since  it  is  not  con- 
sistent with  the  dignity  of  the  United  States  to  press,  after  such 
a  refusal  or  denial,  a  contractual  claim  for  the  repudiation  of 
which,  by  the  law  of  nations,  there  is  no  redress 

"3.  When  the  alleged  debtor  sovereign  declares  that  his  courts 
are  open  to  the  pursuit  of  the  claim,  this  by  itself  is  a  ground 


commending  the  claim  to  the  equi- 
table consideration  of  the  debtor 
without  committing  his  own  Gov- 
ernment to  any  ulterior  proceed- 
ings." Letter  to  Mr.  Miller,  May 
16,  1871,  MS.  Dom.  Let.  348.  And 
again  he  said:  "It  is  not  the  policy 
or  the  practice  of  this  Department 
to  interpose,  as  a  matter  of  right,  to 
press  upon  foreign  governments 
claims  of  its  citizens  growing  out 
of  the  nonfillment  of  private  con- 
tracts. It  does  not,  however,  with- 
held the  exercise  of  the  good  offices 
of  its  representatives  in  countries 
where  such  claims  originate,  in  man- 
ifest instances  of  injustice  to  citi- 
zens deserving  its  aid;  and  you  are 
directed,  therefore,  in  that  sense,  to 
bring  the  matter  before  the  minister 
for  foreign  affairs  of  Japan,  with  an 
expression  of  the  strong  hope  on  the 
part  of  this  Government  that  ample 
justice  may  be  done  to  the  claimant. 


"There  is  one  consideration  which 
inspires  this  Government  with  a 
deeper  interest  in  cases  of  this  de- 
scription occurring  in  Japan  than 
would  be  entertained  concerning 
similar  cases  in  some  other  countries, 
and  that  is  that  those  foreigners  whose 
services  have  been  engaged  by  that 
judicious  Government  to  impart  to 
its  officers  and  people  a  knowledge 
of  the  arts  and  sciences  as  a  means 
of  perfecting  that  development 
which  has  been  so  auspiciously  be- 
gun, may  receive  such  prompt  and 
ample  fulfillment  of  the  engagements 
made  by  the  authorities  employing 
them  as  will  serve  as  an  encourage- 
ment to  others  so  employed  or  to  be 
employed,  and  that  thus  they  may 
labor  with  zeal  and  confidence,  and 
that  the  national  progress  may  be 
thereby  accelerated  and  assured." 
To  Mr.  Shepard,  March  19,  1872,  MS. 
Inst.  Japan,  I,  502. 


481  REDRESS  FOR  INJURIES WHEELOCK  *S  CASE.  [§    483 

for  a  refusal  to  interpose.  Since  the  establishment  of  the  Court 
of  Claims,  for  instance,  the  Government  of  the  United  States  re- 
mands all  claims  held  abroad,  as  well  as  at  home,  to  the  action 
of  that  court,  and  declines  to  accept  for  its  executive  depart- 
ment cognizance  of  matters  which  by  its  own  system  it  assigns  to 
the  judiciary. 

"4.  When  this  Department  has  been  appealed  to  for  diplo- 
matic intervention  of  this  class,  and  this  intervention  is  refused, 
this  refusal  is  regarded  as  final  unless  after-discovered  evidence 
be  presented  which,  under  the  ordinary  rules  applied  by  the 
courts  in  motions  for  a  new  trial,  ought  to  change  the  result,  or 
unless  fraud  be  shown  in  the  concoction  of  the  decision. ' ' 14 

§  483.  Redress  for  injuries— Wheelock's  case.— While  the 
United  States  will  not  interfere  except  under  peculiar  circum- 
stances in  the  collection  of  debts  or  in  matters  of  a  purely  con- 
tractual nature,  yet  where  injuries  or  outrages  have  been  com- 
mitted upon  American  citizens,  the  United  States  has  in  several 
<3ases  sought  redress.  An  American  citizen,  John  E.  Wheelock, 
was  arrested  in  1879  in  Venezuela  by  an  officer  who  combined  in 
himself  the  function  of  a  magistrate  and  a  police  constable.  The 
arrest  was  made  upon  the  complaint  of  an  Italian  subject  who 
charged  Wheelock  with  having  stolen  a  sum  of  money  from  the 
former's  safe,  but  when  the  case  came  on  for  hearing  before  the 
district  court,  Wheelock  was  honorably  acquitted,  and  the  judge 

14  Mr.  Bayard,  Secretary  of  State,  they  were  entitled  to  demand  a  fair 

to  Mr.  Bispham,  June  24,  1885,  156  examination    by    an    impartial    tri- 

MS.    Dom.    Let.    88;    6    Moore    Int.  bunal..    It  was  said  that  it  was  im- 

L.    D.    716.     In   6    Moore's   Interna-  possible    to    define    in    advance    and 

tional   Law  Digest,   717-740,   section  with  precision,  those  cases  in  which 

996,  will  be  found  a  list  of  instances  the  national  power  might  be  exercised 

where  diplomacy  was  held  to  be  the  for  the  relief  of  American  citizens, 

only  method  of  redress.     In  some  of  and    that    such    intervention    would 

these  the  United  States  claimed  that  rarely    be     necessary    in     countries 

it    had    the    right    to    compel    other  where    well-defined    and    established 

governments    to    act    in    good    faith  laws  are  in  operation,  but  that  where 

toward    American    citizens,    and    in-  these    elements    of    confidence    and 

sisted  that  no  action  should  be  taken  security    do    not    exist,    the    United 

depriving    these     citizens     of    their  Plates  is  called  upon  to  be  more  vig- 

rights  except  in  due  course  of  law,  ilant  in  watching  over  its   citizens, 
through  judicial  tribunals,  and  that 
Treaties — 31 


§    484]       RESPONSIBILITY  OF  GOVERNMENT  FOR   MOB  VIOLENCE.  482 

declared  that  not  even  a  ground  of  suspicion  existed  against  him. 
The  constable  who  made  the  arrest,  it  appeared,  caused  Whee- 
loek's  arms  to  be  pinioned  and  subsequently  inflicted  upon  him 
various  tortures  with  the  object  of  compelling  him  to  make  a 
confession.  After  the  termination  of  the  case,  Wheelock  at- 
tempted to  make  a  claim  against  Venezuela  for  $50,000.  The 
United  States  refrained,  for  the  time  being,  from  making  a  formal 
demand  for  reparation,  but  expressed  the  hope  that  the  sense  of 
justice  and  equity  of  the  government  of  Venezuela  would  lead  it  to 
dispose  of  the  question  immediately  and  justly.  The  Venezuelan 
government  declared  that  it  did  not  owe  any  pecuniary  lia- 
bility to  Wheelock,  and  that  it  had  been  determined  by  its  judi- 
cial officers  that  there  was  no  ground  for  continuing  proceedings 
against  the  constable,  nor  for  ordering  his  arrest.  It  stated 
that  a  new  investigation  had  been  ordered,  but  thought  that 
even  if  a  crime  had  been  committed,  the  obligation  of  Venezuela 
would  be  discharged  by  his  condemnation  and  punishment.  It 
was  admitted  on  the  part  of  the  United  States  that,  as  a  gen- 
eral principle,  the  obligations  of  a  government  were  satisfied  by 
the  condemnation  and  punishment  of  the  perpetrator  of  a  crime, 
but  that  this  principle  could  not  be  applied  to  the  proceedings 
against  the  Venezuelan  constable,  for  there  was  every  reason  to 
believe  that  his  vindication,  the  evidence  of  Wheelock  not  be- 
ing adduced,  was  based  solely  on  his  own  testimony  and  that  of 
his  subordinates,  and  in  effect  there  was  an  absolute  denial  of 
justice. 

§  484.  Offer  of  settlement. — Finally  an  offer  of  $6,000  was 
made  by  the  Venezuelan  Minister  in  settlement  of  the  contro- 
versy, the  Minister  declaring  that  the  payment  was  made  out  of 
pure  deference  to  the  people  of  the  United  States,  and  that  his 
government  was  not  to  be  understood  as  acknowledging  the  prec- 
edent that  any  person  considering  "himself  injured  or  ag- 
grieved by  the  acts  of  public  functionaries,  and  still  less  by  those 
of  private  individuals  of  the  nation,  may  disregard  the  ordinary 
means  of  redress — i.  e.,  the  competent  courts  of  the  country— 
and  have  direct  recourse  to  the  diplomatic  interference  of  his 
government  as  a  means  of  securing  reparation."  Mr.  Bayard 
stated  that  "As  sovereign  States,  both  the  United  States  and 


483  CASE  OF  WILLIAM  WILSON.  [§    485 

Venezuela  have  the  undoubted  right  to  be  satisfied,  each  for  it- 
self, that  no  wrong  done  to  its  citizens  by  the  other  passes  un- 
redressed;  and  neither  sovereign  can  rightly  be  expected  to 
recognize  validity  as  attaching  to  the  municipal  enactments  of 
the  one  which  may  assume  to  bar  the  exercise  of  the  rights  given 
by  international  law  to  the  other."  He  intimated  that  the  ob- 
ject which  the  two  governments  had  in  view  was  to  reach  a 
" practical  adjustment"  of  the  dispute.15 

§  485.  Case  of  William  Wilson. — William  Wilson,  a  citizen  of 
the  United  States,  was  shot  without  provocation  by  the  acting 
governor  of  Roma,  Norberto  Arguello,  at  Bluefields,  Nicaragua, 
in  March,  1894.  One  of  the  policemen  of  the  acting  governor 
participated  in  the  murder.  It  appeared  from  the  evidence  that 
Wilson  had  received  severe  treatment  from  his  assailants.  Prom- 
ises were  made  by  the  superior  agents  of  Nicaragua  that  the  mur- 
derer would  be  arrested  and  punished,  but  these  promises  were 
not  fulfilled.  The  United  States  demanded  of  the  government  of 
Nicaragua  that  it  should  show  its  disapproval  of  the  action  of  its 
officers;  that  an  immediate  trial  of  Arguello  should  be  had;  that 
Governor  Torres,  who  was  his  protector,  should  be  discharged 
from  office;  that  the  accomplice  of  the  murderer  should  re- 
ceive proper  punishment,  and  that  such  measures  should  be 
taken  by  the  government  of  Nicaragua  as  should  clearly  show  its 
purpose  and  ability  to  protect  the  lives  and  interests  of  Ameri- 
can citizens  living  in  the  reservation,  and  should  manifest  its 
intent  to  punish  crimes  committed  against  citizens  of  the  United 
States.  The  arrest  of  Arguello  was  effected,  but  he  escaped,  and 
the  government  of  Nicaragua  promised  that  all  efforts  would  be 
made  to  secure  his  recapture.  A  demand  was  also  made  that  one 
Lacayo,  a  commissioner  to  the  Mosquito  reservation,  should  be 
removed  from  office,  as  he  was  considered  even  more  deserving 
of  blame  than  Torres.  The  Nicaraguan  government  removed 
Torres,  but  alleged  that  Lacayo  had  performed  his  full  duty,  and 
asked  that  the  demand  for  his  removal  be  withdrawn,  and  as- 
serted that  efforts  would  be  made  for  the  recapture  of  Arguello, 

15  Mr.  Soteldo  to  Mr.  Bayard,  Mr.  Bayard  to  Mr.  Soteldo,  July  7, 
April  2,  1885,  For.  Eel.  1885,  930;  1885,  Id.  934;  6  Moore's  Int.  L.  D., 
Same  to  same,  June  29,  1885,  Id.  933;  sec.  1001. 


§§  486,  487]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    484 

and  that  it  had  been  ordered  that  the  policeman  who  was  his 
accomplice  should  be  placed  on  trial.16 

§  486.  Zambrano's  case. — The  employer  of  a  Mexican  named 
Zambrano  charged  him  with  having  stolen  and  pawned  a  fowling- 
piece,  and  while  they  were  proceeding  on  their  way  to  the  pawn- 
shop they  met  one  McKenzie,  a  ranger,  whom  the  employer  re- 
quested to  accompany  them  with  a  view  of  the  probable  arrest 
of  the  Mexican.  The  latter  confessed  the  theft  while  at  the 
pawnshop  but  subsequently  sought  to  flee,  and  when  he  had  pro- 
ceeded as  far  as  six  or  eight  paces  the  ranger  fired  at  him  three 
shots,  one  of  which  entered  his  shoulder  and  another  his  neck. 
The  wounded  man  was  taken  to  the  prison,  where  the  city  physi- 
cian cared  for  him.  He  made  a  confession  at  his  trial,  but  re- 

' 

ceived  only  five  days'  imprisonment,  the  court  taking  into  con- 
sideration his  former  misfortune  and  detention.  Allegations 
were  made  that  the  ranger  had  no  lawful  right  to  fire,  and  that 
the  firing  was  not  necessary  to  effect  his  capture,  but  the  grand 
jury,  after  hearing  the  evidence,  concluded  to  return  no  indict- 
ment, and  in  the  ranger's  behalf  it  was  asserted  that  he  was 
partially  lame  and  at  considerable  disadvantage  in  attempting  to 
apprehend  an  escaping  prisoner.  Complaint  w^as  officially  made 
by  the  Mexican  government  of  the  treatment  of  Zambrano  and! 
an  indemnity  was  demanded.  The  United  States,  placing  its  ac- 
tion on  the  ground  that  the  authorities  had  failed  to  try  and 
punish  the  ranger  for  the  unlawful  shooting  of  the  Mexican,  of- 
fered to  the  Mexican  government  an  indemnity  of  $500.  This 
offer  the  Mexican  government  accepted.17 

§  487.  Case  of  Dr.  Shipley. — A  member  of  the  Turkish  po- 
lice in  August,  1903,  at  Smyrna,  attacked,  wounded  and  robbed 
Dr.  Shipley,  a  citizen  of  the  United  States,  who  was  visiting  that 
place,  and  during  the  commission  of  the  outrage  another  mem- 
ber of  the  police  force  looked  on  but  rendered  no  assistance 
The  attention  of  the  Turkish  government  was  called  to  the  oc- 
currence, and  finally  the  commandant  of  the  police  at  Smyrna 
made  a  full  and  formal  apology  to  the  American  consul  and  alsc 

18  Mr.  Gresham,  Secretary  of  State,       For.     Eel.     1894,     470,     475-477;     ( 
to  Mr.  Baker,  Minister  to  Nicaragua,       Moore  Int.  L.  D.  746. 
May  12,   1894,  For.  Eel.   1894,  468;  "  For.  Eel.  1904,  473,  482. 


485  GROUNDS  FOR  INTERFERENCE.  [  §  488 

to  Dr.  Shipley,  whose  claim  for  the  property  of  which  he  was 
robbed  was  paid  in  full.  Upon  this  being  done,  the  United  States 
declared  the  incident  to  be  closed.18 

§  488.  Grounds  for  interference. — The  United  States,  in  its 
diplomatic  policy,  proceeds  upon  the  principle  that  a  nation  ought 
not  to  interfere  in  the  causes  or  controversies  of  its  citizens 
brought  before  foreign  tribunals,  except  in  case  of  a  denial  of 
justice  or  in  a  case  of  palpable  injustice.19  As  stated  by  Mr. 
Jefferson  when  Secretary  of  State,  "A  foreigner,  before  he  ap- 
»  plies  for  extraordinary  interposition,  should  use  his  best  en- 
deavors to  obtain  the  justice  he  claims  from  the  ordinary  tribu- 
nals of  the  country. ' ' 20  Or,  in  the  language  of  Mr.  McLane, 
Secretary  of  State:  "Although  a  government  is  bound  to  pro- 
tect its  citizens,  and  see  that  their  injuries  are  redressed,  where 
justice  is  plainly  refused  them  by  a  foreign  nation,  yet  this 
obligation  always  presupposes  a  resort,  in  the  first  instance,  to 
\  the  ordinary  means  of  defence,  or  reparation,  which  are  afforded 
"\  by  the  laws  of  the  country  in  which  their  rights  are  infringed, 
to  which  laAvs  they  have  voluntarily  subjected  themselves,  by 
entering  within  the  sphere  of  their  operation,  and  by  which  they 
must  consent  to  abide.  It  would  be  an  unreasonable  and  op- 
pressive burden  upon  the  intercourse  between  nations,  that  they 
should  be  compelled  to  investigate  and  determine,  in  the  first 
instance,  every  personal  offence  committed  by  the  citizens  of  the 
one  against  those  of  the  other."21 

"In  international  law,  justice  may  be  denied,"  says  Sir  Traver 
TAVISS,  "(1)  By  the  refusal  of  a  nation  either  to  entertain  the 
complaint  at  all,  or  to  allow  the  right  to  be  established  before 
its  tribunals;  (2)  or  by  studied  delays  and  impediments,  for 
which  no  good  reason  can  be  given,  and  which  are  in  effect 
equivalent  to  a  refusal;  or  (3)  by  an  evidently  unjust  and  par- 
tial decision. ' ' 22 

18  For.    Eel.    1903,    733;    6    Moore  21  To  Mr.  Shain,  May  28,  1834,  26 
Int.  L.  D.  747.                                                  MS.  Dom.  Let.  263. 

19  Bradford,   1   Op.  Atty.   Gen.  53.  -  Law    of    Nations,    pt.    1,    p.    36. 

20  To    the    British   Minister,    April 
18,  1793,  5  MS.  Dom.  Let.  88. 


§    489]       RESPONSIBILITY    OF   GOVERNMENT   FOR   MOB   VIOLENCE.         486 


§  489.  Courts  open  for  redress. — Intervention  through  diplo- 
matic channels  will  not  be  made  when  the  courts  of  a  country 
are  open  for  the  redress  of  claims  to  property.23  The  United 
States  will  not  consider,  as  grounds  of  interference,  irregularities 
in  the  prosecution  of  an  American  citizen  in  Chile,  not  amounting 
to  a  denial  of  justice,  or  an  undue  discrimination  against  him  as 
an  alien.24  But  should  a  Chilean  court  refuse  to  hear  testimony 
on  behalf  of  an  American  citizen  on  trial  for  crime,  and  such 
refusal  should  be  sustained  by  the  Chilean  government,  the 
United  States  would  consider  such  refusal  as  "  a  gross  outrage  to 
an  American  citizen,  for  which  it  will  assuredly,  hold  Chile  re- 
sponsible."25 


23  Mr.  Foster,  Secretary  of  State, 
to   Mr.  Mulcahy,  February  21,   1893, 
190  MS.  Dom.  Let.  406. 

24  Mr.  Marey,  Secretary  of  State, 
to    Mr.    Starkevedther,    August    24, 
1855,  MS.  Inst.  Chile,  XV,  124. 

25  Mr.  Conrad,  Acting  Secretary  of 
State,    to    Mr.    Peyton,    charge    to 
Chile,    October    12,    1852,   MS.    Inst. 
Chile,  XV,  93.     Mr.  Gresham,  Secre- 
tary of  State,  in  an  instruction  to 
Mr.  Eyan,  Minister  to  Mexico,  April 
26,    1893    (MS.    Inst.    Mex.    XXIII, 
359),  said:    "Where  complete  recip- 
rocal   international  equality    is    rec- 
ognized,   as    it    is    fully    recognized 
between  the  United  States  and  Mex- 
ico,  a  necessary  consequence   there- 
of is  that   each  country  must  as  a 
rule  admit  the  competency  and  the 
disposition  of  the  courts  of  the  other 
country  to  do  complete  justice  to  all 
litigants    properly    subject    to    their 
jurisdiction,   regardless   of   national- 
ity.    This    presumption    in    favor    of 
the  competency  and  the  integrity  of 
the  courts  is  very  strong  and  is  not 
to  be  lightly  ignored  upon  the   ap- 
plication   of    disappointed    litigants, 
seeking  for  diplomatic  intervention. 
It  is  not  meant  to  say  that  a  pal- 
pable   denial    of   justice    to    citizens 


of  one  country  in  the  courts  of  the 
other,  may  not  in  extreme  cases  be 
made  the  subject  of  international 
demands.  But  the  circumstances 
which  may  sanction  diplomatic  in- 
tervention as  a  matter  of  right  in 
such  cases,  must  be  very  cogent  in 
order  to  overcome  the  presumption 
above  referred  to.  This  Depart- 
ment, moreover,  entertains  the 
opinion  that  something  of  an  un- 
usual character  must  have  occurred 
to  warrant  even  the  use  of  the  good 
offices  or  mere  unofficial  requests  of 
our  diplomatic  representatives  with 
foreign  governments  in  behalf  of 
American  citizens,  litigants  in  their 
courts.  The  bare  fact  of  an  ad- 
verse decision  will  not  warrant  it, 
and  in  all  cases  judicial  remedies 
must  be  exhausted  by  appeal  or 
otherwise,  before  executive  inter- 
ference is  asked.  The  difficulties 
which  would  exist  in  the  way  of  any 
executive  action  in  this  country,  for 
the  correction  of  alleged  delinquen- 
cies in  the  conduct  of  the  judicial 
tribunals  should  always  be  borne  in 
mind. ' ' 

In  a  note  to  Mr.  Ten  Eyck,  Com- 
missioner to  Hawaii,  August  28, 
1848,  MS.  Inst.  Hawaii,  II,  1,  Mr. 


487 


MONTIJO  CONTROVERSY. 


[§    490 


^  490.  Montijo  controversy. — While  the  steamer  "Montijo," 
which  was  owned  by  citizens  of  the  United  States,  was  on  a 
voyage  to  Panama,  she  was,  on  April  6,  1871,  seized  and  at- 
tacked by  certain  persons  engaged  in  a  revolution.  The  claims 
of  the  owners  for  reparation  were  referred  to  arbitration,  and 
"  among-  other  defenses  urged  was,  that  the  act  was  committed  by 
the  state  of  Panama,  and  not  by  the  United  States  of  Colombia. 


Buchanan,  Secretary  of  the  State, 
said:  "In  regard  to  the  jurisdiction 
of  the  courts  of  independent  nations 
over  American  citizens  resident 
within  their  limits,  it  became  neces- 
sary for  me,  on  the  1st  of  February, 
1848,  to  address  a  note  to  Mr.  Osma 
the  minister  from  Peru,  which  also 
received  the  sanction  of  the  Presi- 
dent and  Cabinet.  From  it  I  make 
the  following  extract.  '  Citizens  of 
the  United  States  whilst  residing  in 
Peru  are  subject  to  its  laws'  and  the 
treaties  existing  between  the  par- 
ties, and  are  amenable  to  its  courts 
of  justice  for  any  crimes  or  offenses 
which  they  may  commit.  It  is  the 
provinc.e  of  the  judiciary  to  construe 
and  administer  the  laws,  and  if  this 
be  done  promptly  and  impartially 
towards  American  citizens  and  with 
a  just  regard  to  their  rights  they 
have  no  cause  of  complaint.  In 
such  cases  they  have  no  right  to 
appeal  for  redress  to  the  diplomatic 
representative  of  their  country,  nor 
ought  he  to  regard  their  complaints. 
It  is  only  where  justice  has  been 
denied  or  unreasonably  delayed  by 
the  courts  of  justice  of  foreign 
countries — where  these  are  used  as 
instruments  to  oppress  American 
citizens  or  to  deprive  them  of  their 
just  rights — that  they  are  war- 
ranted in  appealing  to  their  gov- 
ernment to  interpose.'  All  these 
are  ancient  and  well-established  prin- 
ciples of  public  law;  and  the  quota- 


tions are  made  merely  to  show  that 
they  have  received  the  formal  senc- 
tion  of  this  government." 

Mr.  Marcy,  Secretary  of  State, 
speaking  of  the  criminal  procedure 
of  Austria  (MS.  Inst.  Austria,  I, 
105),  said:  "The  system  of  proceed- 
ing in  criminal  cases  in  the  Austrian 
government  has,  undoubtedly,  as  is 
the  case  in  most  other  absolute  coun- 
tries, many  harsh  features,  and  is  de- 
ficient in  many  safeguards  which  our 
laws  provide  for  the  security  of  the 
accused;  but  it  is  not  within  the 
competence  of  one  independent 
power  to  reform  the  jurisdiction  of 
others,  nor  has  it  the  right  to  regard 
as  an  injury  the  application  of  the 
judicial  system  and  established 
modes  of  proceedings  in  foreign 
countries  to  its  citizens  when  fairly 
brought  under  their  operation.  All 
we  can  ask  of  Austria,  and  this  we 
can  demand  as  a  right,  is  that,  in 
her  proceedings  against  American 
citizens  prosecuted  for  offenses  com- 
mitted within  her  jurisdiction,  she 
should  give  them  the  full  and  fair 
benefit  of  her  system,  such  as  it  is, 
and  deal  with  them  as  she  does  with 
her  own  subjects  or  those  of  other 
foreign  powers.  She  cannot  be 
asked  to  modify  her  mode  of  pro- 
.ceedings  to  suit  our  views,  or  to  ex- 
tend to  our  citizens  all  the  advan- 
tages which  her  subjects  would  have 
under  our  better  and  more  humane 
system  of  criminal  jurisprudence. ' ' 


§§  491,  492]    RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    488 

Mr.  Fish,  Secretary  of  State,  in  a  note  to  the  American  Minister, 
said  that  the  seizure  was  a  piratical  act,  "for  which  it  is  expected 
that  the  authors  will  be  held  to  be  judicially  accountable.  The 
treaty  stipulates  that  no  such  seizure  shall  be  made,  even  by  the 
Colombian  authorities,  without  just  compensation  to  the  aggrieved 
parties.  When,  therefore,  such  an  act  is  committed  in  the  waters 
of  that  republic  by  unauthorized  persons,  the  obligation  of  that 
government  to  make  amends  therefor  may  be  regarded  as  un- 
questionable. You  will  accordingly  apply  for  reparation  in  this 
case. ' ' x  The  controversy  was  finally  submitted  to  arbitration. 
There  was  a  disagreement  as  to  liability  between  the  arbitrators, 
and  the  final  decision  was  rendered  by  the  umpire,  who,  on  July 
25,  1875,  rendered  an  award  in  favor  of  the  claimants  for  $33,401.27 

§  491.  Federal  government  of  Colombia  responsible  for  acts 
of  states. — One  of  the  reasons  advanced  by  Colombia  to  escape 
lability  was  that  the  government  of  the  Union  could  not  be  held 
answerable  for  the  failure  of  the  state  of  Panama  to  compensate 
the  owners,  because  the  Colombian  government  had  no  connection 
with  private  debts,  especially  with  those  having  a  vicious  origin. 
To  this  contention  the  umpire  replied  that  in  his  opinion  the 
government  of  the  Union  had  "a  very  clear  and  decided  connec- 
tion with  the  debts  incurred  by  the  states  of  the  Union  toward 
foreigners  whose  treaty  rights  have  been  invaded  or  attacked; 
and,  secondly,  that  the  debts  so  incurred  by  the  separate  states 
are  in  no  way  private,  but,  on  the  contrary,  entirely  public  in 
their  character."  He  said  that  it  was  true  that  treaties  author- 
izing the  residence  of  foreigners  in  Colombia,  and  defining  and 
assuring  their  rights  during  such  residence,  were  made  with  the 
general  government,  and  not  with  the  separate  states  of  which 
the  Union  is  composed. 

§  492.  Same  practice  in  the  United  States. — The  same  prac- 
tice, he  said,  prevailed  in  the  United  States,  in  Switzerland,  and 
in  all  countries  in  which  the  federal  system  is  adopted.  He  held 
that  if  a  treaty  stipulation  were  violated,  "it  is  evident  that  a 
recourse  must  be  had  to  the  entity  with  which  the  international 
engagements  were  made.  There  is  no  one  else  to  whom  appli- 

"  For.  Bel.  1871,  230.  2T  2  Moore  Js  Int.  Arb.,  1427. 


489  PRACTICE  IN  UNITED   STATES.  [§    493 

cation  can  be  directed.  For  treaty  purposes  the  separate  states 
are  nonexistent;  they  have  parted  with  a  certain  defined  portion 
;  of  their  inherent  sovereignty,  and  can  only  be  dealt  with  through 
their  accredited  representative  or  delegate,  the  federal  or  general 
government."  He  stated,  however,  that  admitting  that  this  is 
the  theory  and  the  practice  of  the  federal  system,  "it  is  equally 
clear  that  the  duty  of  addressing  the  general  government  carries 
with  it  the  right  to  claim  from  that  government,  and  from  it 
alone,  the  fulfillment  of  the  international  pact.  If  a  manifest 
wrong  be  committed  by  a  separate  state,  no  diplomatic  remon- 
strance can  be  addressed  to  it.  It  is  true  that  in  such  a  case 
the  resident  consular  officer  of  a  foreign  power  may  call  the 
attention  of  the  transgressing  state  to  the  consequences  of  its 
action,  and  may  endeavor  by  timely  and  friendly  intervention  on 
the  spot  to  avoid  the  necessity  of  an  ultimate  application  to  the 
general  government  through  the  customary  diplomatic  channel; 
but  should  this  overture  fail,  there  remains  no  remedy  but  the  in- 
terference of  the  federal  power,  which  is  bound  to  redress  the 
wrong',  and,  if  necessary,  compensate  the  injured  foreigner."  He 
concluded  by  remarking  that  if  this  rule  be  correctly  laid  down, 
"It  follows  that  in  every  case  of  international  wrong  the  general 
government  of  this  republic  has  a  very  close  connection  with  the 
proceedings  of  the  separate  States  of  the  Union.  As  it,  and  it 
alone,  is  responsible  to  foreign  nations,  it  is  bound  to  show  in 
every  case  that  it  has  done  its  best  to  obtain  satisfaction  from  the 
aggressor." 

§  493.  Constitution  of  Colombia  prohibiting  interference  with 
states. — The  argument  was  made  in  that  controversy  that  by  the 
Constitution  of  Colombia,  the  federal  power  was  prohibited  from 
interfering  in  the  domestic  disturbances  of  the  states,  and  that  it 
could  not  justly  be  made  accountable  for  acts  for  which  it  had 
not  the  power,  under  the  fundamental  powers  of  that  country,  to 
prevent  or  punish.  To  this  contention  the  umpire  replied  "that 
in  such  a  case  a  treaty  is  superior  to  the  Constitution,  which 
latter  must  give  way.  The  legislation  of  the  republic  must  be 
adapted  to  the  treaty,  not  the  treaty  to  the  laws.  This  constantly 
happens  in  engagements  between  separate  and  independent  na- 
tions. For  the  purposes  of  carrying  out  the  stipulations  of  a 
treaty,  special  laws  are  required.  They  are  made  ad  hoc,  even 


§§  494,  495]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    490 

though  they  may  extend  to  foreigners'  privileges  and  immunities 
which  the  subjects  or  citizens  of  one  or  both  of  the  treaty-making 
powers  do  not  enjoy  at  home. 

"That  under  such  a  rule  apparent  injustice  may  occasionally 
be  committed  is  probably  true.  But  it  is  more  apparent  than  real. 
It  may  seem  at  first  sight  unfair  to  make  the  federal  power,  and 
through  it  the  taxpayers  of  the  country,  responsible,  morally  and 
pecuniarily,  for  events  over  which  they  have  no  control,  and 
which  they  probably  disapprove  or  disavow,  but  the  injustice 
disappears  when  this  inconvenience  is  found  to  be  inseparable 
from  the  federal  system.  If  a  nation  deliberately  adopts  that 
form  of  administering  its  public  affairs,  it  does  so  with  the  full 
knowledge  of  the  consequences  it  entails.  It  calculates  the 
advantages  and  the  drawbacks,  and  cannot  complain  if  the  latter 
now  and  then  make  themselves  felt. ' ' 28 

§  494.  An  embarrassing  precedent. — The  United  States  has 
consistently  disavowed  responsibility  for  acts  committed  against 
foreigners  by  the  inhabitants  of  a  state,  claiming  that  it  has  no 
power  to  prevent  such  acts,  and  they  are  purely  matters  of 
state  cognizance.  Nations,  however,  whose  subjects  have  been 
the  victims  of  such  attacks  can  look  to  none  but  the  national 
government  for  redress,  and  have  insisted  that  it  was  the  duty 
of  the  federal  government  to  make  reparation.  It  may  be  that 
the  decision  in  the  Montijo  case  will  be  regarded  at  some  time 
as  an  embarrassing  precedent,  when  the  contention  is  made  that 
the  federal  government  is  liable  in  no  sense  for  an  act  committed 
within  a  state  against  foreigners  possessing  treaty  rights. 

§  495.  Department  of  State  not  a  court  of  error. — Errors  in 
the  legal  proceedings  not  amounting  to  a  denial  of  justice  are 
not  a  ground  for  diplomatic  intervention.  As  stated  in  1886  by 
Mr.  Bayard,  Secretary  of  State,  in  a  letter  addressed  to  Mr. 
Morrow,  member  of  Congress:  "When  application  is  made  to 
this  department  for  redress  for  the  supposed  injurious  actions 
of  a  foreign  judicial  tribunal,  such  application  can  only  be  sus- 
tained on  one  of  two  grounds:  (1)  Undue  discrimination  against 
the  petitioner  as  a  citizen  of  the  United  States  in  breach  of  treaty 

28  2  Moore's  Int.  Arb.,  1439. 


491  DEMANDS  UPON  THE  UNITED  STATES.          [§§    496,    497 

obligations,  or  (2)  violation  of  those  rules  for  the  maintenance 
of  justice  in  judicial  enquiries  which  are  sanctioned  by  inter- 
national law.  There  is  no  proof  presented  in  Captain  Caleb's 
case  establishing  either  of  these  conditions.  It  is  true  that  it  is 
alleged  that  there  was  a  failure  of  justice,  and  were  this  Depart- 
ment sitting  as  a  court  of  error,  it  is  not  improbable  that  there 
are  points  in  the  proceedings  complained  of  in  the  Mexican  ad- 
judication before  us  which  might  call  for  reversal.  But  this 
Department  is  not  a  tribunal  for  the  revision  of  foreign  courts 
of  justice,  and  it  has  been  uniformly  held  by  us  that  mistakes 
of  law,  or  even  of  facts,  by  such  tribunals,  are  not  grounds  for 
our  interposition  unless  they  are  in  conflict,  as  above  stated,  either 
with  treaty  obligations  to  citizens  of  the  United  States  or  settled 
principles  of  international  law  in  respect  to  the  administration 
of  justice."29 

§  496.  Demands  upon  the  United  States. — There  is  no  statute 
of  the  United  States,  as  we  have  seen,  making  it  a  crime  to 
attack  a  foreigner  residing  in  the  United  States,  who  is  pro- 
tected by  the  provisions  of  a  treaty,  and  the  offense  is  crime  only 
against  the  laws  of  the  state  in  which  the  act  was  committed. 
But  a  treaty  is  made  by  the  United  States  in  its  sovereign 
capacity  as  a  nation,  and  no  treaty  can  be  made  by  an  individual 
state  with  a  foreign  power.  A  foreign  nation  is  compelled  to 
answer  for  the  wrongful  conduct  of  its  citizens  toward  others, 
and  where  a  similar  act  is  committed  in  the  United  States,  that 
nation  looks  to  the  federal  government  for  redress.  The  United 
States  has  uniformly  denied  its  liability,  but  has  in  many  instances 
paid  an  indemnity  for  outrages  committed  upon  the  subjects  of 
other  nations.  Some  of  these  cases  we  shall  proceed  to  notice. 

§  497.  Destruction  of  French  privateers  at  Savannah. — The 
French  privateers  "La  Franchise"  and  "La  Vengeance"  were  in 
the  port  of  Savannah,  Georgia,  and  on  November  15,  1811,  some 
of  their  seamen  engaged  in  a  quarrel  with  some  American  sailors 
in  a  house  of  ill-fame.  One  of  the  Americans  was  killed  and  a 
French  seaman  was  fatally  wounded.  As  a  consequence  a  mob 
arose,  which  set  fire  to  and  destroyed  the  privateers  and  killed 

29  159  MS.  Dom.  Let.  99. 


§§  498,  499]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    492 

several  of  the  French  seamen,  in  spite  of  the  efforts  of  the  police 
and  military  authorities  to  prevent  it.  The  French  minister 
at  Washington  considered  the  attack  thus  made  as  one  upon  the 
flag  of  France,  and  although  the  state  of  Georgia  was  willing 
and  offered  to  make  reparation,  he  demanded  that  the  guilty  be 
prosecuted  and  exemplarily  punished,  that  satisfaction  be  ten- 
dered £or  insult  to  the  flag,  and  that  an  indemnity  of  170,000 
francs  be  given  to  the  owners  of  the  vessels. 

§  498.  Contention  of  France. — It  was  contended  on  the  part 
of  France  that  where  damages  are  caused  as  the  result  of  pop- 
ular uprisings,  the  damages  sustained  are  to  be  compensated  for 
either  by  the  district  in  which  they  were  received,  or  by  the 
government  of  the  country,  which,  it  was  claimed,  should  secure 
strangers  from  acts  of  violence  of  this  character,  as  they  assume 
the  nature  of  public  acts  on  account  of  the  number  of  persons 
engaged.  Our  government  stated  that  the  case  was  manifestly 
different  from  those  in  which  the  United  States  was  then  demand- 
ing indemnity,  where  the  injuries  complained  of  were  committed 
under  express  orders  of  the  government  of  France ;  but,  it  was 
added,  that  if  on  examination,  there  was  found  to  be  any  ground 
for  a  fair  demand  on  the  justice  of  the  United  States  govern- 
ment, it  would  no  doubt  make  proper  reparation.  A  demand 
was  also  presented  for  70,000  francs  for  the  burning,  on  the 
night  of  April  15,  1811,  at  Norfolk,  Virginia,  by  a  mob  incited  it 
was  asserted  by  false  reports  circulated  against  the  vessel,  and 
it  was  stated  that  the  offenders  had  remained  unpunished.30 

§  499.  Position  of  the  United  States. — Our  government,  in 
response,  stated  that  it  had  no  information  as  to  the  case,  but 
that  it  seemed  clear  that  there  was  no  principle  of  public  law 
rendering  the  government  responsible,  inasmuch  as  the  act  appar- 
ently was  committed  with  "perfect  secrecy  under  cover  of  the 
night,  excluding  thereby  all  opportunity  for  the  protective  in- 
terposition of  the  laws  or  of  the  public  authority."31 

All  claims  between  the  two  countries  were  mutually  settled 
by  the  convention  concluded  July  4,  1831,  by  which  it  was  re- 

30  Count  Sebastian!  to  Mr.  Eives,  31  Mr.  Eives  to  Count  Sebastiani, 

June   15,  1831,  H.  Ex.  Doc.   147,  22       June  19,  1831,  H.   Ex.  Doc.  22  Cong. 
Cong.  2  Sess.  191.  2  Sess.  201,  203. 


493  NEW   ORLEANS   AND    KEY   WEST   RIOTS   IN   1851.  [§    500 

cited  that  in  consideration  of  the  payment  of  1,500,000  francs  the 
United  States  was  liberated  from  all  claims  either  by  France 
or  her  citizens  for  supplies,  accounts,  or  "  unlawful  seizures, 
captures,  detentions,  arrests,  or  destruction  of  vessels,  cargoes, 
or  their  property. ' '  32 

§  500.  New  Orleans  and  Key  West  riots  in  1851.— The  Spanish 
authorities  in  Cuba  captured  a  filibustering  expedition,  executed 
some  of  the  members  and  detained  others  as  prisoners.  On  the 
receipt  of  this  news  at  New  Orleans,  on  August  21,  1851,  a  Span- 
ish paper  published  in  that  city,  known  as  the  "La  Union," 
issued  an  extra  giving  an  account  of  the  transaction  and  com- 
menting upon  it.  A  mob  attacked  the  newspaper  office,  prac- 
tically destroying  it,  raided  the  Spanish  consulate,  and  demol- 
ished some  Spanish  coffee  houses  and  tobacco  stores.  The  paper 
had,  by  placards  posted  up  in  the  morning,  been  threatened  with 
an  attack  in  the  evening,  but  the  raiding  really  took  place  be- 
tween 3  and  4  o'clock  in  the  afternoon,  after  the  issue  of  the 
extra.  No  police  were  present  at  the  occurrence,  and  no  arrests 
followed.  During  the  same  afternoon,  between  5  and  6  o'clock, 
the  office  of  the  Spanish  consul  was  attacked.  The  recorder, 
accompanied  by  two  or  three  police  officers,  went  to  the  scene 
and  found  the  mob  engaged  in  destroying  furniture.  The  rioters, 
under  his  persuasion,  withdrew,  but  carried  away  with  them  the 
consul's  sign,  wlrch  they  burned  in  a  public  square,  and  within 
an  hour  afterward  returned  and  forced  their  way  again  into 
the  office,  which  in  the  meantime  had  been  nailed  up  but  left 
with  no  guard  to  protect  it.  On  the  second  attack,  the  rioters, 
without  any  interference  from  the  municipal  authorities,  de- 
stroyed all  the  furniture  in  the  office,  cast  the  archives  of  the 
consulate  into  the  street,  defaced  the  portraits  of  the  Queen  of 
Spain  and  of  the  captain-general  of  Cuba,  and  tore  into  pieces 
the  flag  of  Spain,  which  was  in  the  office.  During  the  night  other 
disturbances  occurred  and  several  of  the  rioters  were  arrested, 
but  apparently  none  who  had  participated  in  the  attack  upon  the 
consul's  office.  The  outbreak  was  a  sudden  one,  for  which  the 
public  authorities  were  not  prepared.  The  police  checked  the 
rioters  wherever  they  made  the  attempt ;  the  mob  made  no  violent 

32  6   Moore's   Int.   Law  Dig.    809;  23  MS.  Dom.  Let.  541. 


§§  501-503]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    494 

resistance  to  the  officers  and  did  not  attempt  to  rescue  any  per- 
son arrested. 

The  consul  sought  refuge  in  the  house  of  a  friend,  and  later 
departed  for  Havana,  intrusting  Spanish  interests  to  the  British 
and  French  consuls.  Complaint  was  made  by  the  Spanish  Min- 
ister that  protection  was  not  given  to  the  consul,  but  that  he 
was  left  to  "the  mercy  of  a  ferocious  rabble." 

§  501.  Distinction  between  rights  of  consul  and  resident  for- 
eigners.— Mr.  Webster  drew  a  distinction  between  the  rights  of 
a  foreign  consul,  who  is  a  public  officer  residing  in  the  United 
States  under  the  protection  of  the  government,  and  the  rights 
of  foreigners  who  have  come  into  this  country  to  mingle  with  our 
citizens  and  to  pursue  their  private  business.  The  consul,  he 
admitted,  might  claim  special  indemnity,  while  foreign  residents 
are  entitled  to  such  protection  as  is  afforded  to  our  own  citizens.33 
President  Fillmore,  in  his  message,  laid  before  Congress  the  facts 
and  the  extent  of  the  pecuniary  loss  sustained  by  the  consul, 
so  that  it  might  make  provision  for  such  indemnity  as  a  just 
regard  for  the  honor  of  the  nation  and  the  respect  due  to  a 
friendly  power  might  seem  to  require.  He  also  called  attention 
to  the  deficiency  in  the  law  in  not  providing  sufficiently  for  the 
protection  or  punishment  of  consuls.34 

§  502.  Appropriation  by  Congress. — Congress,  on  August  31, 
1852,  appropriated  $25,000  "to  make  compensation  to  the  Span- 
ish consul  and  other  subjects  of  Spain  residing  at  New  Orleans 
and  subjects  of  Spain  at  Key  West,  for  losses  occasioned  by 
violence  in  the  year  1851,  arising  from  intelligence  then  recently 
received  at  those  places  of  the  execution  of  certain  persons  at 
Havana  who  had  recently  invaded  the  island  of  Cuba."35  The 
President,  however,  by  an  act  passed  March  3,  1853,  was  requested 
to  investigate  the  losses  in  question,  and  payment  should  be  made. 
The  act  provided  for  such  losses  as  he  should  certify  to  have 
been  suffered.36 

§  503.  Explanations  of  appropriation. — The  explanation  given 
by  members  of  the  Committee  on  Foreign  Relations  for  making 

33  6  Webster's  Works,  509,  511.  35  10  U.  S.  Stats.  89. 

34  Kichardson's  Messages,  V,   118.  36  10  Stats.  262,  263. 


495  DAMAGES  FOR  DESTRUCTION  OF  PROPERTY.        [§  504 

the  appropriation  for  the  private  subjects  of  Spain  was  that 
they  wished  to  show  a  mark  of  courtesy  and  respect  for  the  mag- 
nanimity of  the  Queen  of  Spain  in  liberating  those  individuals 
who  had  been  captured  in  Cuba  and  held  as  prisoners,  and  per- 
mitting them  to  return  home  after  they  had  been  sent  across  the 
ocean.  It  may  be  remarked  that  provision  is  now  made  in  the 
Revised  Statutes  for  the  protection  of  public  ministers.37 

Mr.  Webster,  in  his  letter  to  Senor  Calderon  de  la  Barca, 
Spanish  Minister,  said:  "The  assembling  of  mobs  happens  in  all 
countries;  popular  violences  occasionally  break  out  everywhere, 
setting  law  at  defiance,  trampling  on  the  rights  of  citizens  and 
private  men,  and  sometimes  on  those  of  public  officers,  and  the 
agents  of  foreign  governments  especially  entitled  to  protection. 
In  these  cases  the  public  faith  and  national  honor  require,  not 
only  that  such  outrages  should  be  disavowed,  but  also  that  the 
perpetrators  of  them  should  be  punished  wherever  it  is  possible 
to  bring  them  to  justice;  and  further,  that  full  satisfaction 
should  be  made,  in  cases  in  which  a  duty  to  that  effect  rests  with 
the  government,  according  to  the  general  principles  of  law, 
public  faith,  and  the  obligations  of  treaties." 

§  504.  Damages  for  destruction  of  property. — Mr.  Webster 
referred  to  the  opinion  expressed  by  the  Spanish  minister  that 
not  only  ought  indemnification  be  made  to  the  consul  for  injury 
and  loss  of  property,  but  that  reparation  was  also  due  from  the 
United  States  to  those  Spaniards  residing  in  New  Orleans  whose 
property  the  mob  had  injured  or  destroyed,  and  stated  that  while 
the  government  had  manifested  a  willingness  and  determination 
to  perform  every  duty  which  one  friendly  nation  has  a  right  to 
expect  from  another  in  cases  of  this  kind,  it  supposed  that  the 
rights  of  the  Spanish  consul,  who  was  a  public  officer  residing 
in  the  United  States  under  the  protection  of  the  government, 
were  quite  different  from  those  of  the  Spanish  subjects  who  had 
come  into  the  country  to  mingle  with  our  citizens.  *  *  The  former, ' ' 
said  he,  "may  claim  special  indemnity;  the  latter  are  entitled 
to  such  protection  as  is  afforded  to  our  own  citizens The 

37  Eev.     Stats.,     sees.     4062-4064;       1  Sess.;  H.  Ex.  Doc.  32  Cong.  1  Sess.; 
Cong.   Globe   1851-52,  vol.  24,  pt.   2,       6  Moore 's  Int.  Law  Dig.  815. 
p    2341;  H.  Ex.  Doc.  113,  32   Cong. 


504]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE. 


496 


President  is  of  opinion,  as  already  stated,  that,  for  obvious  rea- 
sons, the  case  of  the  consul  is  different,  and  that  the  Government 
of  the  United  States  should  provide  for  Mr.  Laborde  a  just  in- 
demnity ;  and  a  recommendation  to  that  effect  will  be  laid  before 
Congress  at  an  early  period  of  its  approaching  session.  This  is 
all  which  it  is  in  his  power  to  do.  The  case  may  be  a  new  one ; 
but  the  President,  being  of  opinion  that  Mr.  Laborde  ought  to 
be  indemnified,  has  not  thought  it  necessary  to  search  for  prece- 
dents."38 


38  Continuing,  he  said:  "In  his  an- 
nual message  of  December  2,  1851, 
President  Fillmore  said:  'Ministers 
and  consuls  of  foreign  nations  are 
the  means  and  agents  of  communica- 
tion between  us  and  those  nations, 
and  it  is  of  the  utmost  importance 
that  while  residing  in  the  country 
they  should  feel  a  perfect  security 
so  long  as  they  faithfully  discharge 
their  respective  duties  and  are  guilty 
of  no  violation  of  our  laws.  This 
is  the  admitted  law  of  nations  and 
no  country  has  a  deeper  interest  in 
maintaining  it  than  the  United 
States.  Our  commerce  spreads  over 
every  sea  and  visits  every  clime,  and 
our  ministers  and  consuls  are  ap- 
pointed to  protect  the  interests  of 
that  commerce  as  well  as  to  guard 
the  peace  of  the  country  and  main- 
tain the  honor  of  its  flag.  But  how 
can  they  discharge  these  duties  un- 
less they  be  themselves  protected? 
And  if  protected  it  must  be  by  the 
laws  of  the  country  in  which  they 
reside.  And  what  is  due  to  our 
own  public  functionaries  residing 
in  foreign  nations  is  exactly  the 
measure  of  what  is  due  to  the  func- 
tionaries of  other  governments  re- 
siding here.  As  in  war  the  bearers 
of  flags  of  truce  are  sacred,  or  else 
wars  would  be  interminable,  so  in 
peace  ambassadors,  public  ministers, 


and  consuls,  charged  with  friendly 
national  intercourse,  are  objects  of 
especial  respect  and  protection,  each 
according  to  the  rights  belonging 
to  his  rank  and  station.  In  view 
of  these  important  principles,  it  is 
with  deep  mortification  and  regret 
I  announce  to  you  that  during  the 
excitement  growing  out  of  the  exe- 
cutions at  Havana  the  office  of  her 
Catholic  Majesty's  consul  at  New 
Orleans  was  assailed  by  a  mob,  his 
property  destroyed,  the  Spanish  flag 
found  in  the  office  carried  off  and 
torn  in  pieces,  and  he  himself  in- 
duced to  flee  for  his  personal  safety, 
which  he  supposed  to  be  in  danger. 
On  receiving  intelligence  of  these 
events  I  forthwith  directed  the  at- 
torney of  the  United  States,  resid- 
ing at  New  Orleans  to  inquire  into 
the  facts  and  the  extent  of  the  pe- 
cuniary loss  sustained  by  the  consul, 
with  intention  of  laying  them  before 
you,  that  you  might  make  provision 
for  such  indemnity  to  him  as  a  just 
regard  for  the  honor  of  the  nation 
and  the  respect  which  is  due  to  a 
friendly  power  might,  in  your  judg- 
ment, seem  to  require.  The  cor- 
respondence upon  this  subject  be- 
tween the  Secretary  of  State  and  her 
Catholic  Majesty's  minister  pleni- 
potentiary is  herewith  transmitted.'  " 


497  THE   STEAMER  "  CAROLINE. "  [§§505,506 

^  505.  The  steamer  "Caroline." — In  1837  an  insurrection  oc- 
curred in  Canada,  and  along  the  Canadian  border  there  were 
many  manifestations  of  sympathy  with  the  insurgent  cause. 
While  the  United  States  attempted  strenuously  to  enforce  the 
neutrality  laws,  much  difficulty  was  experienced  in  the  attempt, 
for  the  reason  that  the  insurgents  sought  a  refuge  in  the  United 
States  when  defeated.  Speeches  were  made  in  various  cities  of 
Xew  York  by  the  insurgent  leaders,  who  appealed  to  the  public 
for  volunteers  and  munitions  of  war.  On  the  29th  of  December  of 
that  year  a  small  steamer,  the  "Caroline,"  was  destroyed,  pre- 
sumably by  a  Br^ish  force  on  the  Canadian  side.  Mr.  Forsyth, 
Secretary  of  State,  wrote  to  the  British  Minister  at  Washington, 
complaining  of  the  destruction  of  property  and  the  assassination 
of  American  citizens  on  the  soil  of  New  York.  In  reply  it  was 
stated  that  the  "Caroline"  was  engaged  in  piracy,  and  that  the 
laws  of  the  United  States  were  not  enforced  along  the  frontier, 
but  were  openly  violated,  and  that  the  "Caroline"  was  destroyed 
in  necessary  self-defense.  A  demand  for  reparation  was  made 
May  22,  1838,  by  the  American  Minister  of  the  United  States  at 
London,  and  Lord  Palmerston  acknowledged  its  receipt,  prom- 
ising consideration.39 

§  506.  Arrest  of  McLeod.— Alexander  McLeod,  while  in  an 
intoxicated  condition,  had  boasted  of  active  participation  in 
the  destruction  of  the  vessel,  and  in  March,  1841,  he  was  ar- 
rested in  New  York  on  a  charge  of  murder.  The  British  govern- 
ment then  assumed  responsibility  for  the  destruction  of  the 
steamer,  claiming  that  it  was  a  public  act  of  force  in  self-defense 
by  those  engaged  in  the  British  service,  and  on  this  ground  de- 
manded the  release  of  McLeod.  McLeod  was  indicted,  but  on  the 
trial  was  acquitted  on  proof  of  an  alibi.  While  the  trial  was  in 
progress  he  applied  to  a  state  court  for  a  writ  of  habeas  corpus,  al- 
leging that  he  acted  in  a  governmental  capacity,  and  that  as 
the  controversy  was  in  a  state  of  adjustment  by  the  diplomatic 
representatives  of  the  government  concerned,  he  was  not  subject 
to  the  local  jurisdiction  of  the  courts  of  New  York.  The  court 
denied  the  writ,  and  remanded  him  for  trial,  saying:  "Diplomacy 

39  See  1  Phillmore's  Int.  Law,  3d  ed.,  315;  Hall's  Int.  Law,  4th  ed., 
283. 

Treaties — 32 


§    507]       RESPONSIBILITY  OF  GOVERNMENT   FOR  MOB  VIOLENCE.  498 

is  not  a  judicial,  but  executive  function,  and  the  objection  would 
come  with  the  same  force  whether  it  were  urged  against  proceed- 
ing in  a  court  of  this  state,  or  the  United  States.  Whether  an 
actual  exertion  of  the  treaty-making  power,  by  the  President 
and  Senate,  or  any  power  delegated  to  Congress  by  the  federal 
constitution,  could  work  the  consequences,  contended  for,  we  are 
not  called  upon  to  inquire;  whether  the  executive  of  the  nation 
(supposing  the  case  to  belong  to  the  national  court),  or  the  ex- 
ecutive of  this  state  might  not  pardon  the  prisoner,  or  direct  a 
nolle  prosequi  to  be  entered,  are  considerations  with  which  we 
have  nothing  to  do.  The  executive  power  is  a%onstitutional  de- 
partment in  this,  as  in  every  well-organized  government,  entirely 
distinct  from  the  judicial.  And  that  would  be  so,  were  the  na- 
tional government  blotted  out,  and  the  state  of  New  York  left  to 

take  its  place  as  an  independent  nation Up.on  the  principle 

contended  for,  every  accusation  which  has  been  drawn  in  ques- 
tion by  the  executive  power  of  two  nations  can  be  adjusted  by 
negotiation  or  war  only.  The  individual  must  go  free,  no  mat- 
ter to  what  extent  his  case  may  have  been  misapprehended  by 
either  power.  No  matter  how  criminal  he  may  have  been,  if  his 
country,  though  acting  on  false  representations  of  the  case,  may 
have  been  led  to  approve  of  the  transaction  and  negotiate  con- 
cerning it,  the  demands  of  criminal  justice  are  at  an  end." 

§  507.  Diplomatic  action. — The  case  was  finally  disposed  of 
through  diplomatic  channels,  it  being  admitted  on  the  part  of 
the  United  States  that  the  employment  of  force  might  have  been 
justifiable  by  the'  necessity  of  self-defense,  but  the  existence  of 
such  necessity  was  denied,  while  on  the  part  of  Great  Britain  it 
was  maintained  that  an  excuse  for  what  took  place  was  fur- 
nished by  the  circumstances,  but  at  the  same  time  an  apology 
was  made  for  the  invasion  of  the  territory  of  the  United  States.41 

40  People  v.  McLeod,  25  Wend.  483,  Doc.  183,  25  Cong.  3  Sess.;  Message 
37  Am.  Dec.  328.  of  December  28,   1840,  H.   Ex.   Doc. 

41  H.     Ex.     Doc.    64,    25     Cong.     2  33,  26  Cong..  2  Sess.;  H.  Beport,  162, 
Sess.;    H.   Ex.    Doc.    74,   25    Cong.    2  26  Cong.  2  Sess.;  Message  of  March 
Sess.;    Message    of    April    4,    1838;  8,   1842,  H.   Ex.  Doc.   128,   27   Cong. 
H.  Ex.  Doc.   302,  25   Cong.   2   Sess.;  2  Sess.;  Message  of  January  23,  1843, 
Message  of  February  5,  1839,  H.  Ex.  S.  Ex.  Doc.  99,  27  Cong.  3  Sess. 


499  OPINION  OP   JOHN   QUINCY  ADAMS.  [§§    508,    509 

§  508.  Opinion  of  John  Quincy  Adams. — Mr.  John  Quincy 
Adams  declared,  in  the  House  of  Representatives,  that  he  took  it 
that  the  "Caroline"  was  arrayed  against  the  British  government, 
and  that  the  parties  concerned  in  it  were  employed  in  acts  of 
war  against  it,  and  that  he  did  not  subscribe  to  the  opinion  ex- 
pressed by  the  court  in  New  York  that  no  act  of  war  had  been 
committed.  "Nor  do  I  subscribe  to  it  that  every  nation  goes  to 
war  only  on  issuing  a  declaration  or  proclamation  of  war.  This 
is  not  the  fact.  Nations  often  wage  wars  for  years,  without  is- 
suing any  declaration  of  war.  The  question  is  not  here  upon  a 
declaration  of  war,  but  acts  of  war.  And  I  say  that  in  the 
judgment  of  all  impartial  men  of  other  nations,  we  shall  be  held 
as  a  nation  responsible;  that  the  'Caroline/  there,  was  in  a 
state  of  war  against  Great  Britain;  for  purposes  of  war,  and  the 
worst  kind  of  war — to  sustain  an  insurrection :  I  will  not  say 
rebellion,  because  rebellion  is  a  crime,  and  because  I  have  heard 
them  talked  of  as  patriots. "  42 

§  509.  Principle  of  public  law  admitted. — Mr.  Webster,  Sec- 
retary of  State,  in  a  note  to  Lord  Ashburton,  the  British  tylinis- 
ter,  said  that  the  President  saw,  with  pleasure,  that  he  fully  ad- 
mitted those  great  principles  of  public  law,  applicable  to  cases  of 
this  kind,  which  the  government  of  the  United  States  had  ex- 
pressed, "and  that  on  your  part,  as  on  ours,  respect  for  the  in- 
violable character  of  the  territory  of  independent  states  is  the 
most  essential  foundation  of  civilization.  And  while  it  is  ad- 
mitted on  both  sides  that  there  are  exceptions  to  this  rule,  he  is 
gratified  to  find  that  your  Lordship  admits  that  such  exceptions 
must  come  within  the  limitations  stated  and  the  terms  used  in  a 
former  communication  from  this  department  to  the  British  pleni- 
potentiary here.  Undoubtedly  it  is  just  that,  while  it  is  ad- 
mitted that  exceptions  growing  out  of  the  great  law  of  self-de- 
fense do  exist,  those  exceptions  should  be  confined  to  cases  in 
which  the  'necessity  of  that  self-defense  is  instant,  overwhelming, 
and  leaving  no  choice  of  means,  and  no  moment  for  deliberation. ' 

"Understanding  these  principles  alike,  the  difference  between 
the  two  governments  is  only  whether  the  facts  in  the  case  of  the 
; Caroline'  makes  out  a  case  of  such  necessity  for  the  purpose  of 

42  2  Benton's  Thirty  Years'  View,  289. 


§§  510,  511]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    500 

i 

self-defense.  Seeing  that  the  transaction  is  not  recent,  having 
happened  in  the  time  of  one  of  his  predecessors,  seeing  that  your 
Lordship,  in  the  name  of  your  government,  solemnly  declares 
that  no  slight  or  disrespect  was  intended  to  the  sovereign  author- 
ity of  the  United  States;  seeing  that  it  is  acknowledged  that, 
whether  justifiable  or  not,  there  was  yet  a  violation  of  the  ter- 
ritory of  the  United  States,  and  that  you  are  instructed  to  say 
that  your  government  consider  that  as  a  most  serious  occurrence ; 
seeing,  finally,  that  it  is  now  admitted  that  an  explanation  and 
apology  for  this  violation  was  due  at  the  time;  the  President  is 
content  to  receive  these  acknowledgments  and  assurances  in  the 
conciliatory  spirit  which  marks  your  Lordship's  letter,  and  will 
make  this  subject,  as  a  complaint  of  violation  of  territory,  the 
topic  of  no  further  discussion  between  the  two  governments. ' ' 43 

§  510.  Federal  statute  enacted. — There  was  no  statute  in  ex- 
istence at  the  time  of  the  trial  of  McLeod  by  which  the  federal 
government  could  prevent  the  trial  in  a  state  court  of  a  person 
who  was  acting,  or  claiming  to  act,  under  the  direction  of  a  for- 
eign government.  To  give  the  federal  courts  the  power  to  ex- 
amine into  such  cases  and,  if  the  facts  justified,  to  discharge  on 
habeas  corpus,  a  statute  was  enacted  conferring  jurisdiction  upon 
the  federal  courts,  and  the  substance  of  this  statute  is  now  found 
in  the  Revised  Statutes.  It  is  provided  that  the  several  justices 
and  judges  of  the  federal  courts  shall  have  power  to  grant  writs 
of  habeas  corpus,  but  that  the  writ  shall  in  no  case  extend  to  a 
prisoner  in  jail  unless,  "being  a  subject  or  citizen  of  a  foreign 
state,  and  domiciled  therein/7  he  "is  in  custody  for  an  act  done  or 
omitted  under  any  alleged  right,  title,  authority,  privilege,  pro- 
tection, or  exemption  claimed  under  the  commission  or  order, 
or  sanction  of  any  foreign  state,  or  under  color  thereof,  the 
validity  and  effect  whereof  depend  upon  the  law  of  nations. ' ' 44 

§  511.  Attacks  on  Chinese  at  Denver. — At  Denver,  Colorado, 
on  November  10,  1880,  a  lawless  mob  attacked  certain  Chinese 
residents  of  that  city,  killed  one  and  injured  others,  at  the  same 
time  destroying  much  of  their  property.  The  mob  obtained  a 
mastery  over  the  constituted  authorities  and  at  first  directed  their 

43  6    Webster's    Works,    301,    302.     "  Kev.  Stats.,  sec.  753. 


."01  VIEWS  OF   MR.   EVAETS,   SECRETARY   OF   STATE.        [§§    512,    513 

attack  against  the  peaceable  and  law-abiding  citizens  of  the  com- 
munity. The  Chinese  Minister,  in  asking  that  the  federal  gov- 
ernment should  extend  protection  to  the  Chinese  at  Denver,  and 
to  see  that  those  guilty  of  the  crime  should  be  arrested  and  pun- 
ished, also  stated  that  "it  would  seem  to  be  just  that  the  own- 
ers of  property  wantonly  destroyed  shall  in  some  way  be  com- 
pensated for  their  losses. ' ' 

§  512.  Views  of  Mr.  Evarts,  Secretary  of  State.— Mr.  Evarts, 
Secretary  of  State,  while  assuring  the  Chinese  Minister  that  the 
protection  of  the  government  would  be  fully  given  to  Chinese 
residents  in  the  country  to  the  same  extent  as  it  is  afforded  to 
her  own  citizens,  declared:  "As  to  the  arrest  and  punishment  of 
the  guilty  persons  who  composed  the  mob  at  Denver,  I  need  only 
.remind  you  that  the  powers  of  direct  intervention  on  the  part 
of  this  Government  are  limited  by  the  Constitution  of  the  United 
States.  Under  the  limitations  of  that  instrument,  the  Govern- 
ment of  the  Federal  Union  cannot  interfere  in  regard  to  the  ad- 
ministration or  execution  of  the  municipal  laws  of  a  State  of  the 
Union,  except  under  circumstances  expressly  provided  for  in  the 
Constitution.  Such  instances  are  confined  to  the  case  of  a  State 
whose  power  is  found  inadequate  to  the  enforcement  of  its  munic- 
ipal laws  and  the  maintenance  of  its  sovereign  authority;  and 
even  then  the  Federal  authority  can  only  be  brought  into  opera- 
tion in  the  particular  state  in  response  to  a  formal  request  from 
the  proper  political  authority  of  the  State.  It  will  thus  be  per- 
ceived that  so  far  as  the  arrest  and  punishment  of  the  guilty 
parties  may  be  concerned,  it  is  a  matter  which  in  the  present 
aspect  of  the  case  belongs  exelusivery  to  the  government  and  au- 
thorities of  the  State  of  Colorado."  45 

§  513.  Compensation  to  owners  of  property. — Mr.  Evarts  de- 
dared,  that  frequently  lawless  persons  banded  together  and  made 
up  a  force  sufficient  in  power  and  numerical  strength  to  defy 
temporarily  the  power  of  the  local  authorities,  and  stated  that 
such  incidents  are  peculiar  to  no  country.  In  the  case  under 

45  For.  Eel.  1881,  319.  Mr.  Evarts  citizens  of  Denver  was  the  protec- 
also  called  attention  to  the  fact  that  tion  and  safety  of  the  Chinese  resi- 
the  first  care  of  the  authorities  and  dents. 


§    514]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  502 

consideration,  it  appeared,  he  said,  that  the  local  authorities 
brought  into  requisition  all  the  means  at  their  command  for  the 
suppression  of  the  mob,  and  that  these  means  proved  so  effec- 
tive that  within  a  short  time  regular  and  lawful  authority  had 
been  restored  and  the  mob  subdued.  Referring  to  the  demand 
for  compensation,  we  can  best  give  his  views  in  his  own  language : 

"Under  circumstances  of  this  nature  when  the  Government  has 
put  forth  every  legitimate  effort  to  suppress  a  mob  that  threatens 
or  attacks  alike  the  safety  and  security  of  its  own  citizens  and 
the  foreign  residents  within  its  borders,  I  know  of  no  principle 
of  national  obligation,  and  there  certainly  is  none  arising  from 
treaty  stipulation  which  renders  it  incumbent  on  the  Govern- 
ment of  the  United  States  to  make  indemnity  to  the  Chinese  resi- 
dents of  Denver,  who  in  common  with  citizens  of  the  United 
States,  at  the  time  residents  in  that  city,  suffered  losses  from 
the  operations  of  the  mob.  Whatever  remedies  may  be  afforded 
to  the  citizens  of  Colorado  or  to  the  citizens  of  the  United  States 
from  other  States  of  the  Union  resident  in  Colorado  for  losses 
resulting  from  that  occurrence,  are  equally  open  to  the  Chinese 
residents  of  Denver  who  may  have  suffered  from  the  lawlessness 
of  the  mob.  This  is  all  that  the  principles  of  international  law 
and  the  usages  of  national  comity  demand. ' ' 

Mr.  Evarts  said  that  the  view  just  expressed  proceeded  upon 
the  proposition  that  Chinese  residents  were  to  receive  the  same 
measure  of  protection  and  vindication  under  judicial  and  politi- 
cal administration  of  their  rights  as  citizens  of  this  country, 
and  hence  it  was  not  necessary  to  discuss  the  extent  or  true 
meaning  of  the  treaty  obligations  on  the  part  of  the  Government 
to  Chinese  residents.46 

§  514.  Attack  on  Chinese  at  Rock  Springs. — A  mob,  number- 
ing approximately  one  hundred  and  fifty  persons,  attacked,  on 

46  For.  Rel.  1881,  319.  Mr.  Bayard,  was  maintained  by  Mr.  Evarts  and 
Secretary  of  State,  in  a  letter  ad-  by  Mr.  Elaine  on  December  30th, 
dressed  on  June  1,  1885,  to  Mr.  West,  1880,  and  March  25,  1881,  when  de- 
British  Minister,  stated  the  proposi-  dining  to  accept  for  the  Executive 
tion  "that  when  the  courts  of  jus-  jurisdiction  over  a  claim  for  dam- 
tice  are  open  to  a  foreigner  in  a  ages  to  certain  Chinese  inflicted  by 
State,  the  Federal  Executor  will  not  a  mob  in  Colorado  in  November, 
take  cognizance  of  his  complaint,  1880."  For.  Eel.  1885,  150,  456. 


503  .  CASE  OF  TERRITORY.  [§    515 

September  2,  1885,  the  Chinese  settlement  at  Bock  Springs,  Wyom- 
ing, ordered  them  to  leave  their  homes,  and  before  they  were 
given  an  opportunity  to  do  so  opened  fire  upon  them,  killed 
twenty-eight  and  wounded  fifteen  more  or  less  severely.  Some 
of  these  were  shot  while  they  were  still  in  their  houses,  or  while 
they  were  attempting  to  run  away  from  the  rioters,  who  set  fire 
to  the  houses,  and  in  consequence  the  entire  Chinese  village  was 
burned  to  the  ground.  The  -amount  of  property  destroyed  or 
appropriated  by  the  rioters  was  placed  at  $147,748.74.  United 
States  troops  were  sent  to  the  scene  after  the  massacre,  thus 
probably  preventing  a  further  loss  of  life  and  property.  The 
Chinese  Minister,  in  his  letter  of  complaint,  stated  that  the  at- 
tack was  unprovoked;  that  the  civil  authorities  did  not  attempt 
to  prevent  or  suppress  the  riot;  that  the  inquest  held  by  them 
was  a  burlesque ;  and  that  there  was  no  probability  that  any  of 
the  offenders  wrould  ever  be  brought  to  punishment  by  the  local 
authorities.  He  asked  for  the  punishment  of  the  guilty,  in- 
demnity for  all  losses  and  injuries  sustained,  and  the  adoption 
of  suitable  measures  for  the  protection  from  similar  attacks  of 
Chinese  residing  in  Wyoming  and  elsewhere  in  the  United  States. 

§  515.  Case  of  territory. — He  referred  to  the  doubts  expressed 
by  Mr.  Evarts  and  Mr.  Blaine  as  to  the  obligation  of  the  United 
States  to  make  pecuniary  indemnity  to  the  Chinese  sufferers  by 
the  mob  at  Denver,  and  claimed  that  the  reasons  advanced  why 
the  federal  government  should  not  be  liable  when  the  acts  oc- 
curred within  a  state  did  not  apply  in  the  case  of  a  territory, 
but  declared  that  there  was  a  broader  view,  and  called  attention 
to  the  fact  that  in  1858  the  Chinese  provincial  and  local  authori- 
ties had,  upon  the  intervention  of  the  diplomatic  and  consular 
representatives  of  the  United  States,  indemnified  American  citi- 
zens in  many  cases  for  losses  occasioned  by  riots  and  violence, 
and  that  in  that  year  a  convention  was  agreed  upon  under  which, 
"in  full  liquidation  of  all  claims  of  American  citizens,"  the  Chi- 
nese government  paid  over  to  the  United  States  the  sum  of 
$735,258.97,  which,  it  afterward  transpired,  was  greater  than  the 
amount  of  the  claims,  and  the  balance  unexpended  was  returned 
to  China  by  the  United  States.  This  settlement  included  claims 
for  losses  sustained  by  mob  violence,  robbery  and  other  lawless 
acts  of  individual  Chinese  subjects. 


§    516]       RESPONSIBILITY  OF   GOVERNMENT  FOR  MOB  VIOLENCE.  504 

§  516.  American  demands  on  China. — The  Chinese  Minister 
also  adverted  to  the  fact  that  since  this  settlement,  the  Ameri- 
can diplomatic  and  consular  representatives,  acting  under  their 
instructions,  had  constantly  and  uniformly  intervened  with  the 
Chinese  Imperial  and  local  authorities  in  all  cases,  coming  to  their 
notice,  of  losses  or  injuries  suffered  by  American  citizens  from 
mob  violence,  and  that  the  Chinese  authorities  were  requested  to 
punish  the  ^offenders  and  also  to  make  proper  indemnity  to  the 
American  citizens  for  all  their  losses.  The  Chinese  Government, 
he  said,  had  in  such  cases,  either  acting  directly,  or  through  the 
local  authorities,  paid  all  losses  caused  by  the  burning  or  de- 
struction of  houses  by  mobs,  and  in  some  cases  had  compelled 
the  local  authorities  to  rebuild  or  repair  the  houses  injured  or 
destroyed.  His  government  had  also,  he  continued,  made  in- 
demnity for  petty  thefts  where  those  guilty  were  not  known  or 
could  not  be.  arrested,  and  had,  in  many  other  cases,  caused  the 
return  of  money  or  the  payment  of  indemnity.  He  also  referred 
to  the  action  taken  by  the  United  States  in  the  case  of  the  riots 
at  New  Orleans  and  Key  West  in  1850,  when  Congress  author- 
ized the  indemnification  of  Spanish  subjects  for  losses  sustained, 
and,  while  he  admitted  that  this  was  done  as  a  voluntary  act 
of  goodwill,  he  claimed  that  it  went  to  show  the  existence  of 
high  principles  of  equity  and  national  comity  which  rose  above 
the  narrow  limits  of  statutory  law  and  which  controlled  the  ac- 
tions of  nations;  and  suggested  that  if  in  the  past  a  way  had 
been  found  by  which  the  obstructions  referred  to  by  Secretaries 
Evarts  and  Blaine  had  been  overcome  as  to  the  subjects  of  other 
nations,  he  did  not  doubt  that  a  method  equally  efficacious  would 
be  devised  for  the  relief  of  the  subjects  of  China.47 

*T  For.    Eel.    1886,    101.     He    cited  by  the  rioters  to  insure  the  future 

instances  where  reparation  had  been  security    of   American    citizens.     To 

made,   in   one   of  which  the   United  secure  the  return  of  sums  as  small 

States      government     had     sent     its  as  seventy-three  dollars  stolen  from 

consuls   and  warships  to  demand  the  American      citizens,      the      Minister 

trial     of     rioters     where     a     single  plenipotentiary       of       the       United 

American  had  suffered  loss  amount-  States   had   intervened   with    the   im- 

ing  to  less  than  five  hundred  dollars,  perial    government,    and   representa- 

and  had  required  the  punishment  of  tives  of  our  government  had  asked 

the    guilty    in    the    presence    of    the  for  the  destruction  of  points  in  the 

representatives  of  the  American  gov-  interior  districts  which  were  apt  to 

ernment,    and    the    giving   of   bonds  incite  mob  violence;  the  destruction 


505  VIEWS  OF  MR.   BAYARD,  SECRETARY  OF  STATE.        [§§    517,    518 

§  517.  Views  of  Mr.  Bayard,  Secretary  of  State.— Mr.  Bayard, 
Secretary  of  State,  denied  emphatically  all  liability  to  indemnify 
individuals  of  any  race  or  country  for  loss  growing  out  of  pub- 
lic law,  and  he  declared,  with  equal  emphasis,  "that  just  and 
ample  opportunity  is  given  to  all  who  suffer  wrong  and  seek 
reparation  through  the  channels  of  justice  as  conducted  by  the 
judicial  branch  of  our  Government."  "The  system  of  govern- 
ment," he  said,  "prevailing  in  the  United  States  and  known  to 
China  creates  several  departments,  and  where  an  act  has  not 
been  committed  under  official  authority,  in  pursuance  of  govern- 
mental orders,  the  question  of  reparation  for  losses  to  individ- 
uals must  be  determined  by  the  judicial  branch."  He  added 
that  while  all  liability  was  disclaimed,  and  solely  from  a  senti- 
ment of  generosity,  it  might  reasonably  be  a  subject  for  the  benev- 
olent consideration  of  Congress,  with  the  distinct  understand- 
ing that  no  precedent  should  be  created  to  grant  pecuniary  aid  to 
the  sufferers  to  extent  of  the  value  of  the  property  of  which  they 
were  deprived.48 

§  518.  Incident  devoid  of  national  character. — Mr.  Bayard 
said,  that  on  neither  side  was  there  any  representative  of  the 
government  of  China,  or  of  the  United  States  or  of  the  territory 
of  Wyoming,  and  therefore  the  incident  was  devoid  of  both  of- 
ficial and  national  character.  He  referred  to  the  attempt  of  the 
Chinese  Minister  to  show  by  argument  and  analogy  that  there 
rested  upon  the  United  States  a  singular  and  exceptional  obliga- 
tion toward  China  reciprocal  with  the  contractual  obligations  of 
China  with  respect  to  citizens  of  the  United  States  resorting 
thither,  and  stated  that  before  weighing  this  ad  hominem  argu- 
ment, it  was  necessary  to  know  where  the  conventional  argu- 
ment actually  places  us,  and  proceeded : 

"The  several  treaties  of  1844,  1858,  1868,  and  1880  are  acts 
in  pari  materia,  and  no  subsequent  one  of  them  abrogates  those 

of  block  type  and  the  punishment  from  a  European  or  American  state 
of  those  having  it  in  possession.  under  the  rules  of  the  equitable  code 
These  acts  of  intervention,  he  said,  regulating  the  intercourse  of  civil- 
bad  been  independent  of  any  treaty  ized  nations. 

stipulations  to  that  effect,  and  that  48  For  Eel.  1886,  158;  H.  Ex.  Doc. 

it  could  not  be  believed  in  so  doing  102,  49   Cong.   1   Sess.;    Moore's  Int. 

that  the  United  States  had  required  Law  Dig.  833. 
of  China  what  it  would  not  expect 


§    519]       RESPONSIBILITY  OF   GOVERNMENT  FOR  MOB  VIOLENCE.  506 

which  are  prior  in  date.  There  have  been  successive  modifica- 
tions, extensions,  or  substitutions  as  to  special  subjects,  but  al- 
ways in  express  revival  and  renewal  of  pre-existing  treaties ;  and, 
unless  abrogated  in  express  terms  or  repealed  impliedly  by  the 
adoption  of  new  and  inconsistent  features,  they  all  remain  in 
force.  Upon  those  premises,  and  passing  all  the  personal  and 
residential  stipulations  in  review,  we  find  restrictions  expressly 
recognized  throughout  all  the  treaties  which  prove  the  inability 
to  provide  reciprocity,  by  reasons  of  the  totally  variant  basis  on 
which  the  administrative  functions  and  powers  of  the  two  coun- 
tries are  conducted." 

§  519.  China  closed  to  residence. — Mr.  Bayard  called  atten- 
tion to  the  fact  that  until  1868  no  right  of  immigration  of  Chinese 
subjects  to  the  United  States  was  ever  formally  extended  and 
said:  "None  was,  perhaps,  needed,  for,  under  our  free,  popular 
Government,  and  in  the  absence  of  any  restrictive  legislation,  our 
territory  was  and  is  equally  open  to  all  aliens.  It  was  altogether 
different  in  China.  That  country  was  closed  to  alien  residence 
as  by  a  wall.  A  specific  right  had  to  be  conventionally  created 
before  this  exclusion  could  be  modified.  To  certain  classes  of 
citizens  of  the  United  States  the  treaty  of  1844  granted  carefully 
restricted  rights  to  visit  and  sojourn  in  China,  but  in  every  one 
of  the  articles  which  treats  of  transient  or  permanent  right  of 
residence  appears  the  qualification  that  it  is  for  the  purposes  of 
trade."49 

49  Continuing,  he  said:  ll Article  I  'lawful'  commerce  elsewhere  spoken 
applies  to  our  citizens  'resorting  to  of  in  the  treaty  as  having  been  upper- 
China  for  the  purposes  of  commerce.'  most  in  the  minds  of  the  negotiators. 
Article  III  permits  Americans  to  fre-  Not  merely  was  the  purpose  of  their 
quent  certain  specified  ports,  'and  sojourn  restricted,  but  citizens  of  the 
to  reside  with  their  families  and  United  States  could  not,  under  Article 
trade  there.'  Article  IV  related  to  XVII,  lawfully  transgress  certain 
'citizens  of  the  United  States  doing  residential  limits.  Even  within  those 
business  at  the  said'  ports.  Article  limits  they  were  not  free  to  select 
V  refers  to  'citizens  of  the  United  the  sites  for  their  'houses  and  places 
States  lawfully  engaged  in  commerce.'  of  business,  and  also  hospitals, 
The  important  Article  XIX,  in  regard  churches  and  cemeteries.'  The  'mer- 
to  protection,  speaks  of  'citizens  of  chants'  of  the  United  States  were  not 
the  United  States  in  China  peaceably  to  unreasonably  insist  on  particular 
attending  to  their  affairs,'  and  by  spots  for  those  objects.  Their  resi- 
'  their  affairs '  we  may  regard  the  dence  was  expressly  conditioned  on  its 


507 


NO  RECIPROCITY  INTENDED. 


[§  520 


§  520.  No  reciprocity  intended. — Mr.  Bayard  stated  that  in  all 
the  years  in  which  diplomatic  relations  had  existed  with  China 
there  was  no  reciprocity  of  treatment  of  the  citizens  of  one  country 
within  the  jurisdiction  of  the  other,  and  he  observed  there  could 
not  be,  because  the  government  of  China  had  so  restricted  the 
privileges  which  it  conceded  as  to  make  reciprocity  impossible  on 


being  acceptable  to  the  native  inhabi- 
tants. The  treaty  says,  and  I  am  sure 
you  will  recognize  the  force  of  this 
provision :  '  The  local  authorities  of 
the  two  Governments  shall  select  in 
concert  the  sites  for  the  foregoing 
object,  having  due  regard  for  the  feel- 
ings of  the  people  in  the  location 
thereof. ' 

' '  And  of  that  found  at  the  close  of 
the  same  Article  XVII:  'And  in 
order  to  the  preservation  of  the  public 
peace,  the  local  officers  of  the  Govern- 
ment at  each  of  the  five  ports  shall,  in 
concert  with  the  consuls,  define  the 
limits  beyond  which  it  shall  not  be 
lawful  for  citizens  of  the  United 
States  to  go.' 

' '  The  impracticability  of  maintain- 
ing efficient  police  protection  in  many 
portions  of  every  widely  extended  do- 
main was  recognized  by  the  Chinese 
Government  when  they  expressly 
guarded  against  liability  in  the  clos- 
ing paragraph  of  Article  XXIV  of 
the  treaty  of  1844,  as  follows:  'But 
if,  by  reason  of  the  extent  of  terri- 
tory and  numerous  population  of 
China,  it  should  in  any  case  happen 
that  the  robbers  cannot  be  appre- 
hended or  the  property  only  in  part 
recovered,  then  the  law  will  take  its 
course  in  regard  to  the  local  au- 
thorities, but  the  Chinese  Government 
will  not  make  indemnity  for  the  goods 
lest.' 

"Article  XII  of  the  treaty  of  1858 
if?  a  substantial  reaffirmation  of  these 
conditions.  And  it  is  to  be  noted 
that  this  treaty  of  1858,  while  re- 


enacting  many  of  the  provisions  of 
that  of  1841,  and  passing  over  others, 
in  no  place  intimates  any  enlarge- 
ment of  the  residential  class  of  un- 
official American  citizens  to  include 
others  than  merchants  and  their 
families  within  the  narrow  limits 
aforesaid.  Ten  years  later  we  find 
the  Burlingame  treaty  opening  with 
the  significant  declaration  that  the  ob- 
ject of  preceding  treaties  has  been 
to  give  aliens  certain  restricted  privi- 
leges of  resort  and  residence  in  par- 
ticular localities  'for  purposes  of 
trade.'  Article  V  appears  to  extend 
the  purposes  of  residence  and  resort 
by  including  '  curiosity '  as  a  motive ; 
but  even  this  extension  is  incidental 
to  the  enunciation  of  a  principle,  so 
that  laws  may  be  passed,  not  to  guar- 
antee 'free  migration  and  emigra- 
tion' without  limit,  but  to  prohibit 
involuntary  emigration — in  other 
words,  to  suppress  the  labor  and 
coolie  traffic. 

"  Article  VII  permits  Americans  to 
establish  schools  in  China,  and  by 
implication  includes  American  teach- 
ers in  the  classes  admitted  to  re- 
stricted residence.  In  this,  as  in 
the  other  treaties,  there  is  nothing  to 
offset  the  idea  of  continued  restric- 
tion, for  Article  VI,  which  gives  to 
citizens  of  the  United  States  visiting 
or  residing  in  China,  'the  same  privi- 
leges, immunities  or  exemptions  in  re- 
spect to  travel  or  residence  as  may 
there  be  enjoyed  by  the  citizens  or 
subjects  of  the  most  favored  nation, ' 
neither  creates  nor  extends  any  right 


§    520]       RESPONSIBILITY  OF   GOVERNMENT  FOR  MOB  VIOLENCE.  508 


the  part  of  the  United  States,  unless  it  should  take  the  form  of 
retaliation,  which  he  said,  under  our  system  of  laws,  was  im- 
practicable. The  treaty  of  1880,  he  declared,  was  absolutely 
unilateral,  and  conveyed  no  hint  of  reciprocity.  He  called  atten- 
tion to  the  second  article  of  this  treaty,  which  gave  to  Chinese 
teachers,  students,  merchants  and  those  actuated  by  motives  of 
curiosity,  and  to  the  Chinese  laborers,  who,  at  that  date,  were 
in  the  United  States,  the  right  to  "go  and  come  of  their  own 
free  will  and  accord,"  and  in  addition  entitled  them  to  the  same 
treatment  as  the  citizens  or  subjects  of  the  most  favored  nation, 
and  said:  "I  refrain  from  asking  you  to  point  out  to  me  any  re- 
sponsive position  in  any  of  our  treaties  with  China  which  guaran- 
tees to  American  teachers,  students,  merchants,  curiosity  seekers, 
and  laborers  the  right  to  '  go  and  come  of  their  own  free  will  and 
accord'  throughout  the  length  and  breadth  of  China,  'without 
regard  to  the  feelings  of  the  people'  in  the  localities  whither 
they  may  resort. ' '  50 


ol'  alien  sojourn,  but  rather  confirms 
the  announced  determination  of  China 
to  reserve  all  such  rights  not  ex- 
pressly granted. 

' '  To  sum  up,  as  the  treaties  stand, 
American  citizens  not  of  diplomatic 
or  consular  office  may  resort  to  China 
for  trade,  for  curiosity,  or  as  teachers, 
and  then  only  to  certain  carefully 
limited  localities,  ( having  due  regard 
to  the  feelings  of  the  people  in  the 
location  thereof. '  If  the  citizens  or 
subjects  of  any  other  power  should  be 
granted  other  or  greater  privileges, 
then  the  citizens  of  the  United  States 
will  have  equal  treatment. 

"On  the  other  hand,  Chinese  sub- 
jects were  at  all  times  free  between 
1844  and  1868  to  come  to  the  United 
States  and  travel  or  sojourn  therein, 
pursuing  whatever  lawful  occupation 
they  might  see  fit  to  engage  in,  with- 
out the  need  of  treaty  guaranty. 
The  sixth  article  of  the  Burlingame 
treaty  created  no  privilege  in  their 
behalf;  it  simply  recorded  an  existing 
fact;  for  the  Chinese  were  then  as 


free  to  visit  and  sojourn  in  the  United 
States  as  any  other  aliens  were,  and 
no  law  of  regulation  or  inhibition  was 
upon  our  statute-books." 

50  He  then  continued:  "Passing 
from  the  question  of  reciprocity, 
whether  in  its  sentimental  or  con- 
tractual aspects,  to  the  question  of 
the  actual  guaranty  stipulated  by  the 
United  States  to  Chinese  of  all  classes, 
including  laborers  within  their  juris- 
djction,  and  of  the  responsibilities  of 
this  Government  in  the  matter,  we 
find  that  in  the  treaty  of  1868,  by 
its  sixth  article,  the  United  States 
for  the  first  time  established,  as  a 
treaty  right,  the  theretofore  con- 
suetudinary privilege  of  emigration 
of  Chinese  to  this  country.  That 
article  says:  'Chinese  subjects,  visit- 
ing or  residing  in  the  United  States, 
shall  enjoy  the  same  privileges,  im- 
munities and  exemptions  in  respect  to 
travel  or  residence  as  may  there  be  en- 
joyed by  the  citizens  or  subjects  of 
the  most  favored  nation. ' 


509      SYSTEM  OF  AMERICAN  GOVERNMENT  KNOWN  TO  CHINA.       [§    521 


§  521.  System  of  American  government  known  to  China. — The 
system  of  American  government  prevailing  in  the  United  States 
written  in  its  Constitution  was  known,  said  Mr.  Bayard,  to  China, 
at  the  time  the  treaties  were  entered  into.  Under  this  govern- 
ment, several  departments  have  been  created,  whose  functions 
are  distinct.  The  judicial  branch  must  settle  the  question  of 
liability  for  reparation  or  indemnity  for  losses  to  individuals  in 


' '  TMs  is  renewed,  with  definition 
and  limitation  of  the  particular  classes 
of  Chinese,  to  which  it  is  applicable, 
in  the  second  article  of  the  treaty  of 
1880.  What  is  the  substantial  and 
full  intent  and  meaning  of  these  pro- 
visions as  laid  down  in  1868,  and 
again  with  special  definition  in  1880? 
What  'most  favored  nation'  is  to  be 
taken  as  a  test  and  for  the  purpose  of 
comparing  the  rights  of  its  citizens 
or  subjects  in  the  United  States  with 
those  of  China?  To  constitute  a  spe- 
cial favor  between  nations  it  must 
exist  in  virtue  of  treaty  or  law,  and 
be  extended  in  terms  to  a  particular 
nation  as  a  nation.  Applying  this 
test,  the  citizens  or  subjects  of  no  na- 
tion (unless  it  be  those  of  China) 
have  any  special  favor  in  the  way  of 
personal  treatment  shown  them  in  the 
United  States.  All  are  treated  alike, 
the  subjects  of  the  most  powerful  na- 
tions equally  with  others.  An  Eng- 
lishman, a  Frenchman,  a  German,  a 
Eussian,  is  neither  more  or  less  fav- 
ored than  one  of  any  other  nation- 
ality. 

< '  Tried  by  this  test,  will  it  be  de- 
nied that  the  public  and  local  laws 
throughout  the  United  States  make 
no  distinction  or  discrimination  un- 
favorable to  any  man  by  reason  of 
his  Chinese  nationality,  except  only 
those  Federal  laws  regulating,  limit- 
ing and  suspending  Chinese  immigra- 
tion which  have  been  enacted  in  con- 
formity with  the  express  provisions  of 
the  treaty  of  1880? 


"What  are  the  duties  of  the  Gov- 
ernment of  the  United  States  under 
that  treaty  towards  Chinese  subjects 
within  their  jurisdiction? 

' '  The  Chinese  subjects  now  in  the 
United  States  are  certainly  accorded 
all  the  rights,  privileges,  immunities 
and  exemptions  which  pertain  to  the 
citizens  and  subjects  of  the  most  fav- 
ored nation,  as  is  provided  in  the 
second  article  of  the  treaty.  They  are 
suffered  to  travel  at  will  all  over 
the  United  States,  to  engage  in  any 
lawful  occupation,  and  to  reside  in 
any  quarter  which  they  may  select, 
and  there  is  no  avenue  to  public  jus- 
tice or  protection  for  their  lives,  their 
commercial  contracts,  or  their  prop- 
erty in  any  of  its  forms  which  is 
not  equally  open  to  them  as  to  the 
citizens  of  our  own  "country. 

' f  The  same  laws  are  administered 
bj  the  same  tribunals  to  Chinese  sub- 
jects as  to  American  citizens,  save  in 
one  respect,  wherein  the  Chinese  alien 
is  the  more  favored,  since  he  has  the 
right  of  option  in  selecting  either 
a  State  or  a  Federal  tribunal  for  the 
trial  of  his  rights,  which,  in  many 
cases,  is  denied  for  residential  causes 
to  our  own  citizens;  and  he  may  even 
at  will  remove  his  cause  from  a  state 
to  a  Federal  court. 

' '  Thus,  I  find  in  the  public  press 
the  announcement  that  Wing  Hing, 
on  behalf  of  himself  and  others, 
Chinese  subjects,  has  lately  brought 
suit  in  the  United  States  circuit  court 
to  recover  $132,000  from  the  city  of 


521]       RESPONSIBILITY  OF   GOVERNMENT  FOR  MOB  VIOLENCE.  510 


all  cases  where  the  act  complained  of  has  been  committed  under 
official  authority.  He  stated  that  "The  doctrine  of  the  nonlia- 
bility of  the  United  States  for  the  acts  of  individuals  committed 
in  violation  of  its  laws  is  clear  as  to  acts  of  its  own  citizens,  and 
a  fortiori  in  respect  of  aliens  who  abuse  the  privilege  accorded 
them  of  residence  in  our  midst  by  breaking  the  public  peace  and 
infringing  upon  the  right  of  others,  and  it  has  been  correctly 
and  authoritatively  laid  down  by  my  predecessors  in  office,"' 
and  to  that  doctrine,  he  stated,  "The  course  of  this  government 
furnishes  no  exception."  Referring  to  the  New  Orleans  riot  of 
1850,  he  said  that  nothing  could  be  clearer  than  the  enunciation 
of  the  doctrine  of  the  nonliability  of  the  government.  "While 
denouncing  such  outrages  as  disgraceful  and  in  criminal  viola- 
tion of  law  and  order,  it  was  emphatically  denied  that  the  acts 
in  question  created  any  obligation  on  the  part  of  the  United 
States,  arising  out  of  the  good  faith  of  nations  toward  each  other, 
for  the  losses  thus  occasioned  by  and  to  individuals. ' ' 51 


Eureka,  Humboldt  County,  California, 
for  loss  of  property  by  the  action  of 
a  mob  in  February  of  last  year.  A 
citizen  of  that  State  would  have  been 
compelled  to  resort  to  a  State 
tribunal,  without  appeal  beyond  the 
jurisdiction  of  the  State,  whereas  the 
Chinese  plaintiff  in  question  can  carry 
his  case  on  appeal  to  the  Supreme 
Court  at  Washington,  thus  divesting 
his  rights  from  all  adverse  chance  of 
local  prejudice 

1 '  The  provision  of  an  oiganized 
and  in  some  cases  privileged  forum 
excludes  the  idea  of  direct  recourse 
by  the  alien  to  other  means  of  ob- 
taining justice  or  redress.  Your  note 
argues  that  direct  recourse  to  admin- 
istrative or  executive  settlement  is 
open  to  citizens  of  the  United  States 
in  China,  and  instances  are  cited  to 
show  this.  Surely,  this  rather  proves 
that  to  the  alien  in  China  no  such 
judicial  forum  is  secured  as  to  aliens 
in  the  United  States. 

"The  extraterritorial  tribunals  es- 
tablished for  their  own  citizens  or 


subjects  by  all  the  powers  in  treaty 
relations  with  China  are,  in  principle 
and  from  the  reason  of  the  thing, 
incompetent  to  adjudicate  questions 
touching  the  liability  of  China  to 
aliens.  In  default  of  Chinese  tri- 
bunals admittedly  competent  to  take 
cognizance  of  the  causes  of  for- 
eigners, what  alternative  remains  be- 
sides denial  of  justice  or  resort  to 
diplomatic  settlement ? ' ' 

51  Further  discussing  the  subject  he 
proceeded :  ' '  Neither  is  there  a  parity 
between  the  Spanish  incident  of  1850 
and  the  recent  riot  and  massacre  of 
the  Chinese  at  Rock  Springs.  The 
essential  feature  of  the  first  is  wholly 
wanting  in  the  second.  The  emblem 
of  Spanish  nationality  had  suffered 
an  affront  in  a  city  of  the  United 
States.  The  special  immunity  at- 
taching to  the  Spanish  consular  repre- 
sentative had  been  impaired  and  he 
subjected  to  personal  indignity.  The 
incident  occurred  at  a  time  when  the 
Spanish  Government  had  just  shown 
its  regard  for  and  goodwill  toward 


511 


PRESIDENT  CLEVELAND'S  SPECIAL  MESSAGE. 


[§  522 


§  522.  President  Cleveland's  special  message. — President 
Cleveland,  in  a  special  message  on  March  2,  1886,  transmitted  to 
Congress  the  correspondence  between  the  Secretary  of  State  and 
the  Chinese  Minister,  and  asked  that  body,  in  its  high  discre- 


the  United  States  in  pardoning  cer- 
tain American  citizens  who  had  par- 
ticipated in  a  hostile  invasion  of 
Cuba,  and  had  incurred  the  condemna- 
tion of  the  authorities  of  that  coun- 
try. Recognizing  the  merciful  action 
of  the  Queen  of  Spain  in  this  regard, 
and  as  a  responsive  act  of  generosity 
and  friendship  tending  toward  good 
relationship,  the  President,  while  ex- 
pressly denying  the  principle  of  na- 
tional liability,  recommended  to  Con- 
gress the  appropriation  of  certain 
moneys  to  be  paid  to  private  in- 
dividuals on  account  of  the  damages 
caused  by  riots  at  New  Orleans  and 
Key  West,  and  to  the  Spanish  consul 
at  New  Orleans  a  special  indemnity 
as  an  official  of  Spain. 

"In  one  thing,  however,  the  Span- 
ish riots  of  1850  and  the  Rock 
Springs  massacre  of  1885  are  simi- 
lar. Both  grew  out  of  alien  animosi- 
ties transplanted  to  our  shores 

But  this  has  no  bearing  on  the  ques- 
tion of  the  indemnity  accorded  to 
Spain,  which  was,  as  you  indeed 
candidly  admit  in  your  note,  'a  volun- 
tary act  of  goodwill  above  and  be- 
yond the  strict  authorization  of  do- 
mestic law, '  and,  I  may  add,  of  in- 
ternational law  also. 

'A  measure  of  international  obli- 
gation rests  on  the  United  States 
under  the  third  article  of  the  treaty 
of  1880,  which,  in  the  event  that 
Chinese  laborers  or  others  in  the 
United  States,  '  meet  with  ill-treat- 
ment at  the  hands  of  other  persons,' 
requires  the  Government  of  the 
United  States  to  l exert  all  its  power' 
to  devise  measures  for  their  protec- 


tion and  to  secure  to  them  the  same 
'rights,  privileges,  immunities,  and 
exemptions  as  may  be  enjoyed  by  the 
citizens  or  subjects  of  the  most  fav- 
ored nation,  and  to  which  they  are 
entitled  by  treaty. ' 

"That  the  power  of  the  National 
Government  is  promptly  and  effi- 
ciently exercised  whenever  occasion 
unhappily  arises  therefor  you  have 
justly  acknowledged,  and  it  has  been 
abundantly  shown.  The  conditions 
under  which  this  power  may  be  ap- 
plied are  not  always  clear  and  are 
sometimes  very  difficult.  Causes  grow- 
ing out  of  the  peculiar  characteristics 
and  habits  of  the  Chinese  immigrants 
have  induced  them  to  segregate  them- 
selves from  the  rest  of  the  residents 
and  citizens  of  the  United  States,  and 
tc.  refuse  to  mingle  with  the  mass 
of  population  as  do  the  members  of 
other  nationalities.  As  a  conse- 
quence race  prejudice  has  been  more 
excited  against  them,  notably  among 
aliens  of  other  nationalities,  who  are 
more  directly  brought  into  competi- 
tion with  the  Chinese  in  those  ruder 
fields  of  merely  manual  toil  wherein 
our  skilled  native  labor  finds  it  un- 
piofitable  to  engage More- 
over, the  Chinese  laborers  voluntarily 
carry  this  principle  of  isolation  and 
segregation  into  remote  regions  where 
law  and  authority  are  well  known  to 
be  feeblest,  and  where  conflicts  of 
labor  and  prejudices  of  race  may  be 
precipitated  on  the  slightest  pretext 
and  carried  without  check  to  limits 
beyond  those  possible  where  the 
powers  of  law  may  be  better  or- 
ganized. 


§    522]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  512 


tion,  to  direct  the  bounty  of  the  government  "in  aid  of  innocent 
and  peaceful  strangers  whose  maltreatment  has  brought  discredit 
upon  the  country;  with  the  distinct  understanding  that  such  ac- 


"No  measures  can  be  devised  to 
meet  the  problem  which  do  not  take 
this  state  of  things  into  account,  nor 
can  they  be  effective  if  they  do  not 
contemplate  the  exercise  of  authority 
where  it  is  competent  to  afford  protec- 
tion, for  these  measures  have  only 
for  their  object  to  secure  to  the 
Chinese  the  same  rights  as  other 
foreigners  of  the  most  favored  nation 
enjoy,  not  superior  or  special  rights. 
For  Chinese  labor  is  not  alone  re- 
pugnant to  the  local  communities; 
from  many  quarters  of  the  land  comes 
the  same  cry — the  conflict  of  different 
alien  laborers  and  the  oppression  of 
the  weaker  by  the  stronger.  There 
can  and  should  be  no  discrimination 
in  applying  punitive  measures  to  all 
infractions  of  law.  And  so,  too, 
with  preventive  measures.  What  will 
protect  a  Hungarian  or  Italian  con- 
tract laborer  in  Pennsylvania  or  a 
Swedish  'non-union'  man  in  Ohio  is 
equally  applicable  to  a  Chinaman  on 
the  Pacific  Coast 

"Eeverting,  however,  to  your  ap- 
peal of  November  30,  which  I  under- 
stand to  be  a  direct  application  to  the 
sense  of  equity  and  justice  of  the 
United  States  for  relief  for  the  un- 
fortunate victims  of  the  carnage  and 
excesses  of  the  mob  at  Eock  Springs, 
I  am  compelled  to  state  most  dis- 
tinctly that  I  should  fail  in  my  duty 
as  representing  the  well-founded 
principles  upon  which  rests  the  rela- 
tion of  this  Government  to  its  citi- 
zens, as  well  as  to  those  who  are  not 
its  citizens  and  yet  are  permitted  to 
come  and  go  freely  within  its  juris- 
diction, did  I  not  deny  emphatically 
all  liability  to  indemnify  individuals, 
of  whatever  race  or  country,  for  loss 


growing  out  of  violations  of  our  pub- 
lic law;  and  declare  with  equal  em- 
phasis that  just  and  ample  oppor- 
tunity is  given  to  all  who  suffer 
wrong  and  seek  reparation  through 
the  channels  of  justice  as  conducted 
by  the  judicial  branch  of  our  Gov- 
ernment. 

"Yet  I  am  frank  to  say  that  the 
circumstances  of  the  case  now  under 
consideration  contain  features  which 
I  am  disposed  to  believe  may  induce 
the  President  to  recommend  to  the 
Congress,  not  as  under  obligation  of 
treaty  or  principle  or  international 
law,  but  solely  from  a  sentiment  of 
generosity  and  pity  to  an  innocent 
and  unfortunate  body  of  men,  sub- 
jects of  a  friendly  power,  who,  being 
peaceably  employed  within  our  juris- 
diction, were  so  shockingly  outraged; 
tnat  in  view  of  the  gross  and  shame- 
ful failure  of  the  police  authorities  at 
Eock  Springs,  in  Wyoming  Territory, 
to  keep  the  peace,  or  even  to  attempt 
to  keep  the  peace,  or  to  make  proper 
efforts  to  uphold  the  law,  or  punish 
the  criminals,  or  make  compensation 
for  the  loss  of  property  pillaged  or  de- 
stroyed, it  may  reasonably  be  a  sub- 
ject for  the  benevolent  consideration 
of  Congress  whether,  with  the  distinct 
understanding  that  no  precedent  is 
thereby  created,  or  liability  for  want 
of  proper  enforcement  of  police 
jurisdiction  in  the  Territories,  they 
will  not,  ex  gratia  grant  pecuniary 
relief  to  the  sufferers  in  the  case  now 
before  us  to  the  extent  of  the  value 
of  the  property  of  which  they  were 
so  outrageously  deprived,  to  the  grave 
discredit  of  republican  institutions." 
For.  Eel.  1886,  158 ;  H.  Ex.  Doc.  102, 
49  Cong.  1  Sess. 


513  VIEWS  OF   SENATOR  EDMUNDS.  [§§    523,    524 

tion  is  no  wise  to  be  held  as  a  precedent,  is  wholly  gratuitous, 
and  is  resorted  to  in  a  spirit  of  pure  generosity  toward  those  who 
are  otherwise  helpless."  Congress,  without  making  in  the  act 
any  question  of  liability,  appropriated  $147,748.47  to  be  paid  to 
the  Chinese  government  for  the  losses  sustained,  to  be  distributed 
among  the  sufferers  and  their  legal  representatives,  in  the  dis- 
cretion of  the  Chinese  government.52  The  Chinese  legation  sub- 
sequently returned  $480.75,  which  sum  represented  duplicated 
claims  of  losses.53 

§  523.  Views  of  Senator  Edmunds. — When  this  bill  appro- 
priating money  for  the  relief  of  Chinese  residents  was  before  the 
Senate,  the  views  expressed  by  Mr.  Bayard  as  to  the  nonliability 
of  the  government  for  these  outrages  were  not  universally  con- 
curred in.  The  bill  was  passed  in  the  Senate  by  a  vote  of  30  to 
10,  and  Senator  Edmunds,  who  voted  with  the  majority,  contended 
that  between  nations  there  can  be  negligence  on  the  part  of  gov- 
ernments, and  said:  "One  nation  as  between  itself  and  another 
is  not  bound  by  the  internal  autonomy  of  that  state,  but  it  looks 
to  the  body  of  the  nation  to  carry  out  its  obligations,  and  if  they 
have  not  the  judicial  means  to  do  it,  for  one  reason  or  another, 
the  nation  that  is  injured  is  not  bound  by  the  failure  of  the  na- 
tion whose  people  committed  the  injury. ' '  54 

§  524.  Other  allowances  for  injuries  to  Chinese  residents. — In 
addition  to  the  losses  suffered  at  Rock  Springs,  injuries  and  losses 
had  been  inflicted  on  Chinese  residents  in  the  territories  of  Wash- 
ington, Montana,  Alaska  and  the  state  of  California,  and  by  ar- 
ticle V  of  the  immigration  treaty  between  the  United  States  and 
China,  which  was  signed  at  Washington,  March  12,  1888,  the  sum 
of  $276,619.75  was  agreed  to  be  paid  to  the  Chinese  Minister  at 
Washington  by  the  United  States  as  full  indemnity  for  the  losses  so 
inflicted.  This  treaty,  however,  was  never  ratified,  but  Congress 
provided  by  the  act  of  October  19,  1888,  for  the  payment  of  the 
sum  mentioned  in  the  treaty  as  full  indemnity  for  all  losses  and  in- 
juries sustained  by  Chinese  subjects  within  the  United  States,  stat- 

52  Act    of    February    24,   1887,   24  53  For.  Eel.  1887,  243,  244. 

Stats.     418;     Message    of    President  M  Cong.   Record,   vol.   17,   pt.   5,  p. 

Cleveland,  March  2,  1886,  H.  Ex.  Doc.       5386. 
102,  49  Cong.  1  Sess. 
Treaties — 33 


§§  525,  526]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    514 

ing  that  it  was  done  "out  of  humane  consideration  and  without 
reference  to  the  question  of  liability  therefor. ' ' 55 

§  525.  Explanation  of  treaty. — Mr.  Bayard,  in  his  report  to 
the  President  in  which  he  explained  the  terms  of  the  treaty, 
stated  that  the  liability  of  the  government  was  not  to  be  ad- 
mitted, as  the  article  of  the  treaty  referred  to  recited,  yet  con- 
ceded that  "it  is  competent  for  this  Government,  in  humane 
consideration  of  those  occurrences,  so  discreditable  to  the  com- 
munity, in  which  they  have  taken  place,  and  outside  of  the  puni- 
tive powers  of  the  National  Government,  to  make  voluntary  and 
generous  provisions  for  those,  who  have  been  made  the  innocent 
victims  of  lawless  violence  within  our  borders,  and  to  that  end, 
following  the  dictates  of  humanity,  and,  it  may  be  added,  the 
example  of  the  Chinese  Government  in  sundry  cases,  where 
American  citizens  who  were  the  subjects  of  mob  violence  in 
China,  have  been  indemnified  by  the  Government,  the  present 
treaty  provides  for  the  payment  of  a  sum  of  money. ' '  He  stated, 
also,  that  this  payment  would  reflect  beneficially  upon  the  wel- 
fare of  American  residents  in  China,  and  in  .a  measure  would  re- 
move the  reproach  to  our  civilization  caused  by  the  crimes  to 
which  he  referred.56  Article  V  of  the  proposed  treaty,  which, 
as  we  have  said,  was  not  ratified  by  the  Senate,  declared  that  the 
money  to  be  paid  by  the  United  States  was  "without  reference 
to  the  question  of  liability  therefor,  which  as  a  legal  obligation  it 
denies."57 

§  526.  Mafia  riots  and  lynching  at  New  Orleans.— The  chief  of 
police  of  New  Orleans,  D.  C.  Hennessy,  was  murdered,  it  was  sup- 
posed, through  the  action  of  a  secret  Italian  society  known  as 
the  Mafia.  On  March  14,  1891,  eleven  Italians  charged  with  his 
murder  were  killed  by  a  mob,  and  the  Italian  consul  reported 
the  affair  immediately  to  the  Italian  Minister  at  Washington. 
The  latter  was  instructed  by  the  Italian  Minister  of  Foreign  Af- 
fairs to  request  protection  for  the  Italians  in  New  Orleans  and 
to  demand  the  punishment  of  those  concerned  in  the  attack.  The 
Italian  Minister,  in  pursuance  of  these  instructions,  brought  the 

56  25    Stats.     565,    566;  For.    Eel.  1    Sess.;    25   U.    S.    Stats.    565,   566; 

3889,   116-118.  For.   Eel.    1889,    116-118;    6   Moore's 

»  For.   Eel.    1888,   I,    396-400;    Id.  Law  Dig.,  sec.  1025. 

359-395 ;    S.   Ex.  Doc.   272,   50   Cong.  37  For.  Eel.  1881,  I,  396-400. 


f)lf>  DEMANDS  OF  THE   ITALIAN   GOVERNMENT.  [§    527 

affair  to  the  attention  of  the  Secretary  of  State,  Mr.  Blame,  who 
telegraphed  to  the  governor  of  Louisiana  that  the  treaty  between 
the  United  States  and  Italy  guaranteed  to  the  subjects  of  the  lat- 
ter country  constant  protection  and  security  for  their  persons 
and  property,  and  that  the  President  hoped  the  governor  would 
co-operate  with  him  in  maintaining  the  obligations  of  the  United 
States  toward  the  Italian  subjects  in  his  state,  to  the  end  that  fur- 
ther violence  might  be  prevented. 

$  527.  Demands  of  the  Italian  government. — The  Italian  gov- 
ernment asked  not  only  the  official  assurance  by  the  United 
States  that  the  guilty  parties  should  be  brought  to  trial,  but  also 
that  it  should  be  recognized  in  .principle  that  an  indemnity  was 
due  to  the  relatives  of  the  victims.  As  our  government  refused 
to  make  any  promise  of  reparation,  Italy  recalled  its  Minister. 
Considerable  correspondence  passed  between  the  two  governments 
and  some  misunderstanding  arose  as  to  the  meaning  of  certain 
language  used  by  our  government  as  conveying  an  admission 
that  an  indemnity  was  due,  and  finally,  to  correct  any  impression 
to  that  effect,  Mr.  Elaine  stated  that  the  question  whether  there 
was  or  was  not  a  violation  of  the  treaty  was  a  question  upon 
which  the  President,  with  sufficient  facts  before  him,  had  taken 
ample  time  for  decision,  and  declared  that  the  position  taken  by 
our  government  was  that  if  it  should  appear  that  "among  those 
killed  by  the  mob  at  New  Orleans  there  were  some  Italian  sub- 
jects who  were  resident  or  domiciled  in  that  city,  agreeably  to 
our  treaty  with  Italy,  and  not  in  violation  of  our  immigration  laws 
and  who  were  abiding  in  the  peace  of  the  United  States  and  obey- 
ing the  laws  thereof  and  of  the  State  of  Louisiana,  and  that  the 
public  officers  charged  with  the  duty  of  protecting  life  and  prop- 
erty in  that  city  connived  at  the  work  of  the  mob,  or,  upon  proper 
notice  or  information  of  the  threatened  danger,  failed  to  take  any 
steps  for  the  preservation  of  the  public  peace  and  afterward  to 
bring  the  guilty  to  trial,  the  President  would,  under  such  circum- 
stances, feel  that  a  case  was  established  that  should  be  submitted 
to  the  consideration  of  Congress,  with  a  view  to  the  relief  of  the 
families  of  the  Italian  siibjects  who  had  lost  their  lives  by  lawless 
violence."58 

58  For.  Eel.  1891,  665-667,  671,  672,  674,  712. 


§§528,529]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.    51 

§  528.  Withdrawal  of  American  Minister.— Mr.  Porter,  th 
American  Minister,  after  the  withdrawal  of  Baron  Fava,  th 
Italian  Minister  at  Washington,  withdrew  from  Rome  and  wa 
granted  leave  to  visit  the  United  States.  President  Harrison,  i: 
his  annual  message  of  December  9,  1891,  stated  that  it  would  b 
competent  for  Congress  to  make  offenses  against  treaty  right 
cognizable  in  the  federal  courts,  but  that  this  had  not  been  done 
and  that  federal  officers  and  courts  have  no  power  to  intervene 
It  would  seem  to  follow,  he  said,  that  the  officers  of  the  stat 
should  be  regarded  as  federal  agents,  so  as  to  make  the  govern 
ment  responsible  for  their  acts  in  cases  where  it  would  be  re 
sponsible,  if  it  had  used  its  constitutional  power  to  define  an( 
punish  crimes  against  treaty  rights.59 

§  529.  Tender  of  indemnity. — Mr.  Elaine,  in  a  note  datec 
April  12,  1892,  tendered  to  the  Minister  of  Foreign  Affairs  o 
Italy  125,000  francs,  or  $24,330.90,  stating  that  while  the  injur: 
was  not  inflicted  directly  by  the  United  States,  still,  in  the  opin 
ion  of  the  President,  it  was  the  solemn  duty  as  well  as  the  grea 
pleasure  of  the  national  government  to  pay  a  satisfactory  in 
demnity,  and  expressed  the  hope  that  all  memory  of  the  unhappy 
tragedy  might  be  effaced.  The  Marquis  Imperiali,  Minister  o: 
Foreign  Affairs,  accepted  the  indemnity,  but  stated  that  he  did  s( 
"without  prejudice  to  the  judicial  steps  which  it  may  be  propej 
for  the  parties  to  take,"  and  that  by  the  instructions  of  his  gov 
ernment  diplomatic  relations  between  Italy  and  the  United  State* 
were  fully  re-established.60 

59  For.  Eel.  1891,  V;  For.  Eel.  1892,  Italian  people,  nor  in  any  disresped 
XIV.  to    the    Government    of     Italy,    witl 

60  For.    Eel.    1891,    665,    671,     674,  which  our  relations  were  of  the  mosi 
712,  727,  728 ;  For.  Eel.  1891,  V. ;  For.  friendly  character.     The  fury  of  th< 
Eel.  1892,  XIV;  6  Moore's  Int.  Law  mob  was  directed  against  these  mei 
Dig.,    sec.     1026.     The    language    of  a?    the   supposed   participants   or   ac 
President  Harrison  in  his  message  of  cessories  in  the  murder  of  a  city  offi 
December    9,    1891,    on    this    subject  cer.     I  do  not  allude  to  this  as  miti 
was:  gating    in   any     degree    this     offensi 

"The  lynching  at  New  Orleans  in  against  law  and  humanity,  but   onh 

March  last  of  eleven  men  of  Italian  as    affecting    the    international    ques 

nativity  by  a  mob  of  citizens  was  a  tions  which  grew  out  of  it.     It  was 

most  deplorable  and  discreditable  in-  at    once    represented    by    the    Italiai 

cident.     It  did  not,  however,  have  its  minister  that  several  of  those  whost 

origin  in  any  general  animosity  to  the  lives  had  been  taken  by  the  mob  wen 


517 


SUITS    TO   RECOVER    DAMAGES. 


[§  530 


$  530.  Suits  to  recover  damages. — Suits  were  brought  to  re- 
cover damages  by  the  relatives  of  those  killed  in  the  riot,  but  it 
was  decided  that  the  killing  of  a  human  being  by  a  mob  allowed 
to  congregate  by  the  negligence  of  municipal  officers  does  not 
render  the  municipal  corporation  liable  for  damages  in  the  ab- 
sence of  a  statute  so  declaring.  The  treaty  between  the  United 
States  and  Italy,  then  in  force,  guaranteed  to  the  citizens  of 
either  nation  in  the  territory  "the  most  constant  protection 
and  security  for  their  persons  and  property,"  and  also  that 
''they  shall  enjoy  in  this  respect  the  same  rights  and  privileges 
as  are  or  shall  be  granted  to  the  natives  on  their  submitting  them- 
selves to  the  conditions  imposed  upon  the  natives. ' ' 61  The  court 
decided  that  this  treaty  was  applicable  only  so  far  as  to  require 
that  the  rights  of  the  Italian  mother,  who  was  suing  for  the  death 
of  her  son,  should  be  adjudicated  and  determined  exactly  the 
same  as  if  she  were,  and  her  deceased  son  had  been,  a  native  citi- 


Italian  subjects,  and  a  demand  was 
made  for  the  punishment  of  the  par- 
ticipants and  for  an  indemnity  to  the 
families  of  those  who  were  killed.  It 
is  to  be  regretted  that  the  manner 
.11  which  these  claims  were  presented 
vvas  not  such  as  to  promote  a  calm 
liscussion  of  the  questions  involved; 
out  this  may  well  be  attributed  to 
;he  excitement  and  indignation  which 
;he  crime  naturally  evoked.  The 
/lews  of  this  Government  as  to  its 
obligations  to  foreigners  domiciled 
lere  were  fully  stated  in  the  corres- 
pondence, as  well  as  its  purpose  to 
nake  an  investigation  of  the  affair 
vith  a  view  to  determine  whether 
:here  were  present  any  circumstances 
jhat  could,  under  such  rules  of  duty 
is  we  had  indicated,  create  an  obli- 
gation upon  the  United  States.  The 
temporary  absence  of  a  minister 
lenipotentiary  of  Italy  at  this  Capi- 
al  has  retarded  the  further  corres- 
>ondence,  but  it  is  not  doubted  that 

friendly  conclusion  is  attainable. 

"Some  suggestions  growing  out  of 


this  unhappy  incident  are  worthy  the 
attention  of  Congress.  It  would,  I 
believe,  be  entirely  competent  for 
Congress  to  make  offenses  against  the 
treaty  rights  of  foreigners  domiciled 
in  the  United  States  cognizable  in  the 
Federal  Courts.  This  has  not,  how- 
ever, been  done,  and  the  Federal  offi- 
cers and  courts  have  no  power  in  such 
cases  to  intervene  either  for  the  pro- 
tection of  a  foreign  citizen,  or  for  the 
punishment  of  his  slayers.  It  seems 
to  me  to  follow,*  in  this  state  of  the 
law,  that  the  officers  of  the  State 
charged  with  police  and  judicial 
powers  in  such  cases  must,  in  the  con- 
sideration of  international  questions 
growing  out  of  such  incidents,  be  re- 
garded in  such  sense  as  Federal  agents 
as  to  make  this  Government  answer- 
able for  their  acts  in  cases  where  it 
would  be  answerable  if  the  United 
States  had  used  its  constitutional 
power  to  define  and  punish  crimes 
against  treaty  rights." 

Cl  Treaty  of  1871,  art.  3;  17  Stats, 
at  Large,  845. 


§    531]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  518 

zen  of  this  country.62  The  statute  of  Louisiana  makes  a  munic- 
ipal corporation  liable  for  the  destruction  of  property  by  mobs, 
but  this  does  not  render  a  city  liable  for  the  killing  of  a  person 
by  a  mob.  The  protection  of  life  by  a  municipal  corporation  is 
a  public  duty  required  of  the  government,  and,  in  the  absence  of 
statute,  a  city  is  not  liable  for  failure  in  its  performance.63 

§  531.  Killing  of  Italian  subjects  in  Colorado  in  1895. — Con- 
gress again,  on  another  occasion,  by  an  act  approved  June  30, 
1896,  out  of  humane  consideration  and  without  reference  to  the 
question  of  liability  therefor,  made  an  appropriation  to  the 
Italian  government  of  $10,000  for  full  indemnity  to  the  heirs  of 
three  of  its  subjects  who  were  riotously  killed  and  two  others 
who  were  injured  in  the  state  of  Colorado  by  residents  of  that 
state.  A  coroner's  jury  found  that  A.  J.  Hixon,  an  American 
saloon-keeper,  whose  corpse  was  found  in  the  coal-field  of  Rouse, 
Colorado,  had  been  murdered  by  an  Italian  miner  named  And- 
inino.  He  was  apprehended  and  lodged  in  jail  at  Walsenburg, 
situated  seven  miles  from  the  scene  of  the  murder,  and  other 
Italian  miners  who  were  implicated  by  the  inquest  were  also  ar- 
rested, and  four  of  them,  named  respectively,  Vittone,  Ronchietto, 
Giacobini,  and  Gobetto,  were,  under  the  escort  of  two  deputy 
sheriffs,  being  taken  to  Walsenburg,  when  they  were  intercepted 
by  half  a  dozen  men  on  horseback  and  in  the  encounter  Vittone 
was  instantly  killed.  Giacobini  and  Gobetto  escaped,  and  Ron- 
chietto escaped  with  a  wound  but  was  shortly  after  recaptured 
and  placed  in  the  same  cell  with  Andinino.  On  the  evening  fol- 
lowing, seven  masked  and  armed  men  entered  the  jail,  killed 
Andinino  and  Ronchietto,  thus  making  three  in  all  who  were  killed. 
The  other  two  prisoners,  Giacobini  and  Gobetto,  who  had  es- 
caped, were  subsequently  found  wandering  in  the  mountains  with 
their. feet  frost-bitten  to  such  a  degree  that  it  became  necessary 
to  amputate  them.  Ronchietto  and  Vittone  had  declared  their 
intention  to  become  citizens  of  the  United  States,  but  had  not 
been  naturalized,  and  Andinino  had,  so  far  as  the  evidence  showed, 

62  New    Orleans    v.    Abagnatto,    62  L.    E.     A.    just    cited    there    is    an^ 
Fed.  240,  10  C.  C.  A.  361,  26  L.  K.  elaborate  note  on  the  subject  of  lia- 
A.  329.  bility  of  a  municipal  corporation  for 

63  Gianfortone  v.  New  Orleans,   61  property  destroyed  by  a  mob. 
Fed.    63,    24   L.    R.    A.    592.     In   the 


519         VARIANCE   BETWEEN    CONSUL   AND    AMBASSADOR.       [§§    532,    533 

taken  no  steps  to  throw  off  his  Italian  allegiance.  A  German 
who  was  in  the  same  cell  when  the  attack  was  made  on  the  pris- 
oners at  the  jail  was  unmolested. 

§  532.  Variance  between  consul  and  ambassador. — The  Italian 
consul  at  Denver  reported  that  he  enjoyed  the  co-operation  of  the 
authorities,  from  the  governor  down,  in  his  efforts  to  secure  the 
prosecution  of  the  offenders,  but  that  delays  and  difficulties  had 
occurred  in  the  institution  of  proceedings,  owing  to  various  causes, 
among  which  were  the  sparseness  of  the  population  and  the  in- 
frequency  of  terms  of  court.  The  Italian  ambassador,  however, 
in  his  representations  to  the  Department  of  State,  asserted  that 
neither  in  the  attack  on  the  road  nor  in  the  breaking  into  the  jail 
was  any  resistance  made  by  the  public  force,  which  fact,  he 
claimed,  fixed  the  responsibility  on  the  local  authorities.64 

§  533.  Action  of  the  United  States.— The  Secretary  of  State 
suggested  to  the  Italian  ambassador  that  he  formulate  a  claim, 
which  he  did,  leaving  it  to  "your  high  and  benevolent  apprecia- 
tion to  suggest  the  amount  which  may  be  deemed  suitable  to  in- 
demnify the  families  of  the  victims  of  the  Colorado  mob,  accord- 
ing to  the  spirit  of  justice  which  prompts  all  your  actions."  Mr. 
Olney,  Secretary  of  State,  in  reporting  the  claim  to  the  President, 
with  a  view  to  its  submission  to  Congress,  stated  that  the  facts 
were  without  dispute,  and  no  comment  or  argument  could  add  to 
the  force  of  their  appeal  to  the  generous  consideration  of  Con- 
gress, and  he  declared :  ' '  The  only  question  would  seem  to  be  as  to 
the  amount  of  the  gratuity  in  each  case,  which  must  rest,  of  course, 
wholly  in  the  discretion  of  Congress,  to  whom  it  can  hardly  be 
necessary  to  cite  the  statutes  of  many  states  of  the  Union  fixing 
the  maximum  to  be  exacted  in  the  case  of  death  caused  by  negli- 
gence at  the  sum  of  $5,000."  65 

President  Cleveland,  in  a  message  to  Congress  of  February  3, 
1896,  communicated'  Mr.  Olney 's  report,  and  after  stating  the 
facts  added:  "Without  discussing  the  question  of  the  liability  of 
the  United  States  for  these  results,  either  by  reason  of  treaty  ob- 
ligations or  under  the  general  rules  of  international  law,  I  venture 
to  urge  upon  the  Congress  the  propriety  of  making  from  the  pub- 

64  For.  Eel.  1895,  II,  950.  "  For.  Eel.  1895,  II.  938. 


§    534]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  520 

lie  treasury  prompt  and  reasonable  pecuniary  provision  for  those 
injured  and  for  the  families  of  those  who  were  killed."66 

§  534.  Lynching  of  Italians  at  Hahnville.— On  August  8,  1896, 
three  Italians,  Salvatore  Arena,  Lorenzo  Salardino,  and  Guiseppe 
Venturella,  who  were  held  on  a  charge  of  homicide,  were  lynched 
in  the  jail  at  Hahnville,  Louisiana,  while  they  were  still  in  the 
custody  of  the  legal  authorities.  When  they  were  first  imprisoned 
the  sheriff,  on  account  of  the  prevailing  excitement,  placed  an  ex- 
tra guard  around  the  jail,  but  subsequently,  in  the  belief  that  the 
excitement  had  subsided,  removed  the  extra  guard,  and,  accord- 
ing to  his  usual  custom,  left  the  jail  in  charge  of  the  jailer.  An 
armed  mob,  composed  of  unknown  persons,  broke  into  the  jail  and 
lynched  the  prisoners,  but  did  not  molest  three  other  Italians  who 
were  confined  in  the  same  prison. 

In  this  case,  Secretary  Olney,  in  his  correspondence  with  the 
Italian  Minister,  asserted  that  the  lawless  act  was  directed  against 
the  victims  as  criminals,  and  not  because  of  racial  prejudice,  as 
was  shown  by  the  fact  that  three  other  Italians,  confined  in  the 
same  jail,  were  not  harmed,  and  also  that  the  three  lynched  men, 
by  taking  part  in  the  political  affairs  of  this  country  and  voting 
at  elections,  must  be  regarded  as  having  renounced  their  legal 
status.  Salardino  had  lived  for  twelve  years  in  Louisiana  and 
had  participated  in  the  civil  affairs  of  the  state,  by  voting  at  elec- 
tions, and  that  Venturella  and  Arena  had  also  resided  in  Louisiana 
for  several  years  and  had  voted  at  elections.  Arena  having  de- 
clared his  intention  to  become  a  citizen  of  the  United  States.  The 
crime,  Mr.  Olney  said,  of  which  they  were  accused  was  peculiarly 
atrocious,  the  attack  on  the  jail  unexpected,  and  its  success  was 
not  imputable  to  any  negligence  or  connivance  on  the  part  of  the 
authorities,  and  that  there  was  no  reason  to  suppose  that  the  re- 
sult would  have  been  different  had  the  victims  been  citizens  of 
the  United  States.  He  laid  particular  emphasis  upon  the  point 
that  they  were  not  "Italians  temporarily  residing  in  the  United 
States,"  and  that  although  a  declaration  of  intention  had  been 
found  only  in  the  case  of  one,  it  had  doubtless  been  made  by  the 
others,  for  the  reason  that  they  could  not  have  voted  otherwise, 
and  that  by  their  qualifying  and  acting  as  electors  they,  in  ac- 

66  H.  Doc.  195,  54  Cong.  1  Sess. ;    For.  Eel.  1895,  II,  938. 


521  GOVERNMENT   CITIZEN^  AGENT.  [§    535 

cordance  with  the  Constitution  and  laws  of  Louisiana,  had  become 
citizens  of  that  State  and  eligible  to  office.  Our  government,  un- 
der these  circumstances,  while  reserving,  for  the  moment,  its  de- 
cision, suggested  to  the  Italian  government  whether  as  against  the 
United  States  it  had  ' '  any  right  or  duty  of  reclamation. ' ' 67 

§  535.  Government  citizen's  agent. — Mr.  Olney,  Secretary  of 
State,  declared  that  in  securing  indemnity  for  injuries  inflicted 
upon  a  citizen,  the  government  that  presents  the  claim  is,  in  truth, 
the  citizen 's  agent.  Any  legal  or  equitable  defense,  he  contended, 
that  is  good  as  against  the  citizen  himself  is  equally  good  as 
against  his  representative.  An  individual,  in  his  view,  who  partici- 
pates in  making  the  laws  and  electing  the  officers  of  one  govern- 
ment must  be  held  to  estop  himself  from  complaining  of  that  gov- 
ernment to  any  other;  and,  he  maintained,  he  is  not  distinguish- 
able, in  point  of  principle,  but  is  to  be  identified  with  the  body 
politic  of  which  he  is  a  member.  "He  may  not  approve  of  a  par- 
ticular act  of  that  body,"  said  Mr.  Olney,  "but  he  contributes  to 
the  power  which  enables  it  to  do  any  or  all  acts.  As  a  matter  of 
fact,  indeed,  his  vote  may  have  brought  about  the  very  legisla- 
tion or  elected  the  very  officer  responsible  for  the  injury  of  which 
he  complains. 

"The  soundness  of  the  position,  therefore,  that  an  international 
reclamation  will  not  lie  against  a  Government  when  the  beneficiary 
of  the  claim  by  taking  part  in  the  organization  and  administra- 
tion of  that  Government  has  in  effect  given  his  assent  to  its  pro- 
ceedings, seems  to  be  supported  by  every  consideration  of  justice 
and  equity.  These  considerations,  which  go  to  the  duty  of  the 
Italian  Government  in  the  premises,  are  re-enforced  by  the  ab- 
sence of  any  real  interest  on  its  part.  The  wrongs  done  at  Hahn- 
ville,  on  account  of  which  its  intercession  is  asked,  were  to  per- 
sons who  had  abandoned  Italian  soil  and  had  ceased  to  be  part  of 
the  population  of  the  kingdom,  and  who  added  nothing  to  its 
productive  capacity  or  to  its  military  strength.  To  intercede  as 
asked,  therefore,  is  to  use  the  credit  and  prestige  and  power  of 
the  Italian  Government  on  behalf  of  persons,  or  the  representa- 
tives of  persons,  whose  fate  and  fortunes  were  at  the  time  of  the 

67  For.  Kel.  1896,  407,  410,  411.  Mr.  Olney,  Secretary  of  State,  to  Baron 
Fava,  Italian  Ambassador. 


§    536]       RESPONSIBILITY  OF  GOVERNMENT  FOR   MOB  VIOLENCE. 


522 


infliction  of  the  wrongs  complained  of  no  real  concern  to  that 
Government. ' ' 68 


§  536.  Contention  of  Italian  ambassador. — Baron  Fava,  the 
Italian  ambassador,  in  response,  contended  that  the  question  at 
issue  was  the  application  of  the  fundamental  principle  of  law  and 
justice,  that  the  persons  accused  were  to  be  deemed  innocent  un- 


68  For.  Eel.  1896,  407,  410,  411. 
He  then  proceeded  to  point  out  the 
distinction  between  this  and  other 
cases,  and  said:  "In  bringing  the 
Hahnville  cases  to  the  notice  of  the 
State  Department  your  excellency 
has  evidently  been  under  the  impres- 
sion that  they  resemble  in  all  sub- 
stantial particulars  the  cases  of  cer- 
tain Italians  lynched  in  New  Or- 
leans in  1891,  and  of  certain  others 
lynched  in  Walsenburg,  Colo.,  in 
1894.  But  in  the  last-named  cases 
there  was  neither  allegation  nor 
proof  that  the  persons  killed  had 
ever  taken  part  in  the  political  af- 
fairs of  a  State  or  of  the  United 
States  by  qualifying  as  voters  and 
actually  voting  at  elections.  In  the 
New  Orleans  cases,  out  of  the  eleven 
persons  of  Italian  extraction  who 
were  lynched,  two  were  American 
citizens;  five  had  declared  their  in- 
tent to  become  United  States  citi- 
zens and  had  voted;  of  the  remain- 
ing four,  three  had  neither  voted  nor 
declared  their  intent  to  become 
United  States  citizens,  while  one  had 
declared  such  intent,  but  had  not 
voted.  To  the  four  persons  last 
mentioned  the  representations  of 
your  Government  and  its  demands 
upon  the  United  States  through  you 
were  expressly  limited,  as  appears  by 
reference  to  the  correspondence  on 
the  subject  between  yourself  and  the 
State  Department.  It  is  true  that 
*he  Italian  consul  at  New  Orleans, 


in  a  note  to  the  district  attorney, 
argued  that  the  Italian  Government 
could  rightfully  intervene  on  behalf 
of  the  five  persons  who  had  declared 
their  intent  to  become  United  States 
citizens  and  had  voted,  and  that  the 
district  attorney  in  a  note  to  the 
Attorney  General  controverted  that 
view.  But  no  position  of  the  Italian 
consul,  though  brought  to  your 
notice,  was  ever  adopted  by  you — it 
was  never  discussed  between  the  two 
Governments.  The  note  announcing 
your  departure  from  Washington  by 
order  of  your  Government  specifies 
only  four  Italian  subjects  on  account 
of  whom  demands  had  been  made 
upon  this  Government,  and  the  inci- 
dent, when  settled,  was  settled  by 
the  payment  of  a  lump  sum,  the  ap- 
plication of  which  was  left  wholly 
to  the  Italian  Government.  The  re- 
sult is  that  the  subject  to  which  the 
attention  of  the  Italian  Government 
is  now  invited  is  one  upon  which 
the  two  Governments  in  their  rela- 
tions to  each  other  stand  wholly  un- 
committed. It  is  not,  therefore,  per- 
missible to  doubt  that  the  question 
will  be  examined  and  passed  upon  by 
each  in  an  enlightened  spirit  and 
with  a  sincere  purpose  not  only  to 
dispose  of  the  particular  matter  in 
hand,  but  to  ascertain  and  fix  a  just 
and  proper  rule  for  the  determina- 
tion of  all  like  questions  hereafter 
arising."  For.  Eel.  1896,  407,  410, 
.  411. 


523  CONTENTION  OF   ITALIAN  AMBASSADOR.  f§    536 

til  found  guilty  by  judicial  process,  and  that  what  the  position 
and  responsibility  of  the  persons  murdered,  or  the  apparent  crim- 
inality of  the  persons  lynched  might  have  been,  was  unimportant. 
The  evidence  showed,  he  maintained,  negligence  on  the  part  of 
the  local  authorities  in  failing  to  protect  the  prisoners,  and  to  ap- 
prehend and  prosecute  the  lynchers,  and  that  such  proceedings 
as  had  been  taken  could  not  but  tend  to  encourage  similar  out- 
rages in  the  future.  He  called  attention  to  the  fact  that  naturaliza- 
tion could  be  granted  by  the  federal  laws  exclusively,  and  not  by 
the  State  laws,  and  that  mere  declaration  of  intention  did  not 
confer  citizenship.69  He  declared  that  no  matter  what  the  laws  of 
Louisiana  might  be,  and  although  they  might  have  voted  as  elec- 
tors, they  were  not  citizens  of  the  United  States,  because  they 
had  not  complied  with  the  provisions  of  the  Eevised  Statutes  reg- 
ulating naturalization.  He  called  attention  to  certain  cases  in 
which  it  was  held  that  the  power  of  naturalization  was  exclusively 
in  Congress,70  and  also  to  the  opinion  of  counsel  upon  the  status 
of  electors  who  were  not  citizens,  in  which  it  was  stated:  "The 
alien  elector  has  certain  privileges  in  the  matter  of  voting  in 
Louisiana,  and  in  a  few  other  states,  granted  to  him  in  anticipa- 
tion of  a  future  naturalization  which  may  never  ripen  into  citi- 
zenship, and  that  is  all.  But  he  has  not  yet  crossed  the  Rubicon. 
He  has  not  been  naturalized  under  the  act  of  Congress.  He  is 
still  under  the  allegiance  of  the  foreign  government,  and  compe- 
tent to  place  himself  under  the  aegis  of  its  protection."  He 
argued  that  this  was  sufficient  to  show  that  as  the  Italians  had 
not  complied  with  the  requirements  of  the  provisions  on  the  sub- 
ject of  naturalization  contained  in  the  Revised  Statutes,  they  still 
maintained  their  capacity  as  Italian  subjects.71 

69  For.    Eel.    1896,    412,    414,    418,  special    agent    of    your    Department 
421,  422.  that  Salardino,  Arena  and  Ventureila 

70  Citing     Chirac     v.     Chirac,      2  had  voted  at  the  political  elections 
Wheat.  269,  4  L.  ed.  234.  in  Louisiana;  that  Arena  had  taken 

71  For.    Eel.    1896,    412,    414.     He  out    his   first    naturalization   papers, 
said   that   without   prejudice   to    the  while  it  is  to  be  presumed  that  the 
incontestable   Italian   nationality    of  two    others   had   done   the   same,    as 
the  Italians,  he  did  not  hesitate  to  they  also  had  presented  themselves 
enter   upon    an    examination    of   the  at  the  elections;   and  that  all  three 
other  points  relative  to  their  status,  had  definitely  fixed  their  domicile  in 
and  proceeded:  "It  is  stated  by  the  the  United  States. 


§    537]       RESPONSIBILITY  OP  GOVERNMENT  FOR  MOB  VIOLENCE.  524 


§  537.  Italians  voting. — Baron  Fava  said  that  the  entire  solu- 
tion of  the  difficulty  was  found  in  the  treaty  in  force  between  the 
United  States  and  Italy.  He  again  presented  the  request  "that 
the  guilty  parties  be  sought  and  brought  to  justice ;  that  steps  be 


''I  do  not  know  what  were  the 
sources  of  this  information;  as,  how- 
ever, they  are  wholly  at  variance 
with  that  furnished  the  authorities 
of  Louisiana,  and  with  that  which  I 
have  received  from  the  Italian  con- 
sulate at  New  Orleans,  I  must  beg 
your  excellency  to  inform  me:  (a) 
In  what  registers  and  under  what 
date  the  three  Italians  are  inscribed 
as  electors;  (b)  from  which  of  the 
five  Federal  courts  of  Louisiana 
Arena  had  received  his  first  papers; 
(c)  when,  and  to  whom,  the  three 
Italians  had  declared  that  they  had 
fixed  their  domicile  in  the  United 
States 

"But  even  if  Salardino,  Arena 
and  Venturella  had  voted  at  the  elec- 
tions, and  even  if  the  laws  of  Louis- 
iana attached  great  importance  to 
that  fact,  how  could  this  affect  the 
well-proved  fact  that  they  were  not 
American  citizens? 

' '  The  first,  Salardino,  had  resided 
fully  twelve  years  in  Louisiana,  and 
even  if  he  voted,  he  had  not  taken 
out  either  his  first  or  second  natural- 
i/ation  papers.  Arena,  according  to 
the  special  agent,  had  only  taken 
out  his  first  papers,  and  his  attempts 
to  become  an  American  citizen  had 
stopped  there.  Venturella  does  not 
appear  to  have  done  even  this,  as  the 
said  special  agent  could  not  find 
either  his  certificate  of  first  declara- 
tion or  that  of  Salardino.  All  three 
had  had  time  to  ask  for  their  first 
and  second  papers.  Why  did  they 
not  do  so?  The  mere  fact  of  having 
voted  would  not  have  conferred 
upon  any  of  the  three  the  right  of 


citizenship,  as  is  amply  shown  in  the 
inclosed  memorandum;  and  if  they 
voted,  they  voted  illegally,  and  prob- 
ably because  they  had  been  misled 
by  native  politicians  in  search  of 
voters,  legal  or  illegal. 

"But  there  is  more  to  be  said. 
The  four  Italians  who  were  lynched 
at  Walsenburg  on  the  14th  of 
March,  1895,  Francesco  Konchietto, 
Stanislao  Vittone,  Pietro  Giacobino 
and  Antonia  Gobette,  had  solemnly 
declared  their  intention  to  become 
citizens  of  the  United  States,  and 
to  renounce  forever  all  submission 
and  allegiance  to  any  foreign  prince, 
potentate,  state  or  sovereignty,  and 
especially  the  King  of  Italy,  and 
they  all  were  in  possession  of  their 
first  naturalization  papers.  Not- 
withstanding this,  and  in  spite  of 
those  solemn  declarations,  when  I 
informed  the  Federal  Government  of 
the  murders  which  had  been  com- 
mitted, Mr.  Uhl  came  to  my  house 
and  expressed  the  President's  re- 
gret for  that  bloody  act,  and  your 
honorable  predecessor  and  your  ex- 
cellency yourself,  deeply  impressed 
with  a  sense  of  the  duties  which  the 
Government  of  the  Union  has  as- 
sumed toward  a  friendly  power  by 
virtue  of  treaties,  did  not  raise  the 
slightest  objection;  you  all  imme- 
diately recognized  the  Italian  na- 
tionality of  the  four  victims,  and  a 
suitable  indemnity,  recommended  by 
your  Department  and  by  the  Presi- 
dent, was  granted  to  the  bereaved 
families.  In  view  of  this  precedent, 
it  can  hardly  be  maintained  that  the 
subject  to  which  you  have  now 


525 


ITALIANS    VOTING. 


537 


taken  to  prevent  the  repetition  of  such  atrocious  crimes,  and  that 
at  the  same  time,  just  and  adequate  compensation  be  made  to  the 
families  of  the  victims. "  In  a  subsequent  letter,  he  said  relative 
to  the  suggestion  whether  the  Italian  government  can  or  cannot 


called  my  attention  is  one  of  those 
as  to  which  the  two  Governments  are 
entirely  uncommitted. 

"And  lastly,  the  fact  that  the 
three  victims  had  been  in  the  United 
States  for  several  years  cannot  be 
cited  as  a  proof  of  their  deliberate 
'animus  manendi.'  If  they  had  not 
been  residing  here  temporarily,  as 
asserted  by  your  note,  they  would 
have  sent  for  their  families,  whom 
they  had  left  in  Italy,  where  they 
had  their  domicile,  and  whom  they 
supported  from  here  by  their  labor, 
Venturella  his  wife  and  seven  chil- 
dren, Arena  his  wife  and  four-year- 
old  son,  and  Salardino  his  old  father, 
who  was  unable  to  earn  his  living. 
Under  these  circumstances,  and  how- 
ever long  and  continuous  their  ab- 
sence from  Italy  might  have  been, 
it  cannot  be  said  that  they  had 
transferred  their  domicile  to  Lou- 
isiana, nor  had  they  no  intention  of 
returning  to  their  native  land,  nor 
that  they  were  not  contributing  to 
the  resources  and  wealth  of  their 
own  country.  They  had  come  here 
on  business;  that  is  to  say,  to  pro- 
vide by  the  fruits  of  their  labor  for 
the  comfort  of  their  wives,  children, 
and  parents,  and  they  were  thus  con- 
tributing to  the  wealth  of  the  coun- 
try in  which  they  had  their  home. 

1 '  Nor  is  the  other  assertion,  that 
they  had  withdrawn  from  military 
service,  correct.  By  the  two  affi- 
davits which  I  have  the  honor  to 
submit  to  you  (inclosures  5  and  6) 
the  signers  declare  under  oath: 

"(a)  That  Guiseppe  Venturella 
bad  performed  his  regular  military 


service  in  the  artillery,  and  that  he 
landed  in  the  United  States  with  a 
regular  passport  in  his  possession. 

"(b)  That  Salvatore  Arena  had 
not  performed  any  military  service, 
because,  as  an  only  son,  he  was  en- 
rolled in  the  third  class,  and  that 
when  he  arrived  in  the  United  States, 
he  was  in  possession  of  a  regular 
passport. 

"  (e)  And  lastly,  that  Lorenzo 
Salardino  had  never  performed  any 
military  service,  because  he,'  too,  as 
an  only  son,  was  enrolled  in  the  third 
class,  and  that  he  came  to  the  United 
States  with  a  regular  Italian  pass- 
port. 

' '  I  cannot  follow  your  excellency 
in  the  views  expressed  by  you  as  to 
a  Government  demanding  indemnity 
for  injuries  inflicted  upon  one  of  its 
own  subjects,  being  the  agent  of  said 
injured  subject.  In  that  case  the 
American  Government  would  be, 
near  that  of  the  Sultan,  the  agent 
of  the  missionaries,  in  behalf  of 
whom  it  is  now  demanding  indemni- 
ties. Every  Government  owes  it  to 
itself  to  protect,  within  the  bounds 
of  justice,  its  own  subjects,  however 
poor  and  humble,  and  it  would  other- 
wise lose  the  respect  of  civilized  na- 
tions. 

' '  Referring  to  the  other  lynching 
which  occurred  in  New  Orleans  in 
1891,  and  which  you  mention  in  your 
note,  I  must  correct  a  statement  con- 
tained in  that  note,  which  statement 
is  absolutely  and  entirely  incorrect. 
Of  the  eleven  persons  who  were  vic- 
tims of  that  savage  slaughter,  two 
were  American  citizens,  four  were 


§    537]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  526 


consider  as  its  subjects  those  Italians  to  whom  it  is  permitted  to 
vote  in  the  states  of  the  Union:  "Allow  me  to  observe  that  the 
solution  of  this  question  belongs  solely  to  the  Italian  legislator 
and  to  Italian  law.  As  a  matter  of  fact  I  can  add  that  the  Fed- 
eral Government  has  always  considered  and  still  considers  as  citi- 


muloubtedly  Italian  subjects,  and 
the  other  five,  who  had  only  taken 
out  their  first  papers,  were  justly 
regarded  by  the  royal  consul  at  New 
Orleans  as  Italian  subjects.  By  the 
pure,  simple,  and  unreserved  trans- 
mission to  the  Department  of  State, 
in  my  note  of  March  25,  of  the  re- 
port of  the  said  consul,  I  evidently 
and  impliedly  adopted  his  views  on 
the  subject.  Otherwise  I  would 
have  kept  his  report  to  myself.  In 
consequence  of  its  having  been  re- 
marked to  me  in  person  at  the  De- 
partment of  State  that  it  was  pos- 
sible that  those  five  persons  had  also 
taken  out  their  last  papers,  I  re- 
quested the  consul  to  make  new  and 
closer  investigations  in  the  case.  As 
the  diplomatic  rupture  between  the 
two  countries  occurred  a  few  days 
afterwards,  and  as  the  consul's  re- 
plies did  not  reach  me  in  time,  I 
mentioned  in  my  note  of  March  31 
only  the  four  Italians  who  were  un- 
doubtedly subjects  of  the  King.  But 
still  I  never  had  a  thought  of  aban- 
doning the  other  five  if  it  should  be 
found  that  they  had  only  their  first 
papers.  In  fixing  the  indemnity  at 
$25,000  the  United  States  Govern- 
ment must,  therefore,  certainly  have 
admitted  that  those  five  persons  were 
Italian  subjects,  in  spite  of  the  fact 
that  they  had  procured  their  first 
naturalization  papers. 

' '  I  think  that  I  have  shown  by  the 
foregoing  remarks  that  the  partic- 
ular points  in  your  excellency's  note, 
which  I  have  examined  with  all 
sincerity  of  purpose,  are  insufficient 


to  induce  my  Government  to  desist 
from  taking  that  just  action  which 
is  called  for  by  the  murder  of  the 
Italian  subjects  at  Hahnville;  nor 
can  they  in  any  way  disprove  the 
incontrovertible  fact  of  the  Italian 
nationality  of  Arena,  Venturella, 
and  Salardino.  Besides,  this  fact 
was  immediately  admitted  by  the  ju- 
dicial authorities  of  Louisiana  them- 
selves, in  their  report  of  August  15, 
and,  on  the  ground  of  that  report, 
by  the  Department  of  State  in  the 
telegram  sent  by  it  to  the  governor 
on  the  29th  of  August.  Like  the 
said  five  persons  who  were  lynched 
at  New  Orleans  in  1891;  like  those 
of  1895  at  Walsenburg,  Arena,  Ven- 
turella, and  Salardino  were  Italian 
subjects.  And  it  was  precisely  ow- 
ing to  this  undoubted  personal 
status  of  theirs  that  I  had  to  insist 
in  our  interviews — and  the  high 
officials  who  took  your  place  tem- 
porarily last  summer  likewise  ad- 
hered to  them — that  'in  dealing  with 
the  present  case  the  New  Orleans 
lynching  of  1890  and  the  Colorado 
murders  of  1895  should  serve  as  prec- 
edents. ' 

"In  view  of  the  proven  Italian 
nationality  of  the  three  subjects  of 
the  King  who  were  lynched  at  Hahn- 
ville, I  do  not  see,  in  conclusion,  any 
other  way  of  arriving  at  a  legal, 
just,  and  final  settlement  of  the  dis- 
pute than  that  indicated  by  the 
treaties,  the  only  one  consistent  with 
the  dignity  of  great  nations."  For. 
Eel.  1896,  412,  414. 


527  SUBJECT  CLOSED  BY  APPROPRIATION.     [§§  538,  539 

zens  of  the  United  States,  the  numerous  Americans  who  in  Hawaii 
take  a  prominent  part  in  the  political  affairs,  and  vote  openly  at 
the  elections  of  these  islands. ' ' 72 

$  538.  Subject  closed  by  appropriation. — Mr.  Olney,  in  his  re- 
port to  the  President,  December  7,  1896,  stated  that  investigation 
had  shown  that  the  three  men  lynched  had  participated  in  the 
political  affairs  of  this  country,  and  that  their  cases  were  thus 
different  from  the  prior  cases  at  New  Orleans  and  Walsenburg, 
in  which  indemnity  was  tendered  to  the  relatives  of  such  of  the 
victims  as  remained  loyal  subjects  to  Italy.73  He  said:  "Upon 
the  assumption  that  the  unfortunate  men  wrere,  as  in  the  case 
of  some  of  the  victims  of  the  preceding  lynchings,  Italian  sub- 
jects, the  Government  of  Italy  sought  the  mediation  of  that  of  the 
United  States  with  the  State  authorities  to  the  end  of  investigat- 
ing the  occurrence,  and  if  the  facts  so  warranted,  making  provi- 
sion for  the  families  of  the  sufferers  as  in  the  former  instances. 
The  State  of  Louisiana  promptly  instituted  an  inquiry,  express- 
ing regret  and  a  purpose  to  seek  out  the  offenders.  An  inde- 
pendent investigation,  set  on  foot  by  the  Department  of  State 
and  conducted  by  a  trusted  agent,  has  just  been  concluded.  As 
its  result,  it  appears  that  all  the  normal  precautions  for  the  safety 
of  the  prisoners  had  been  taken  by  the  local  officers,  and  that  no 
blame  can  justly  attach  to  them  by  reason  of  the  sudden  out- 
break of  mob  violence  against  these  three  men  against  whom  there 
lay  convincing  evidence  of  the  murder  of  two  estimable  citizens 
of  the  neighborhood.  That  the  lawless  act  was  directed  against 
the  victims  as  criminals,  and  not  because  of  racial  prejudice,  is 
shown  by  the  circumstances  that  three  other  Italians  confined  in 
the  same  jail  on  lesser  charges  were  unharmed." 

§  539.  Renunciation  of  Italian  allegiance. — He  stated  that 
one  of  the  most  important  results  of  the  investigation  in  its  bear- 
ings upon  the  possible  international  features  of  the  controversy 
was  the  fact  that  the  victims  of  the  mob,  by  taking  part  in  the 
political  affairs  of  the  country,  and  by  voting  at  elections,  must 
probably  be  considered  as  having  abandoned  their  original  status. 
"It  is  established,"  said  he,  "by  the  appropriate  record  evidence 

72  For.  Eel.  1896,  414-418,  421,  422.      7S  For.  Eel.  1896,  LXXVI. 


§    540]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  528 

that  one  had  also  taken  the  preliminary  steps  to  abjure  Italian  al- 
legiance, while  the  others  must  be  presumed  to  have  done  so, 
since  by  domicile  and  sharing  in  the  electoral  franchise  they  had 
acquired  lawful  citizenship  of  the  State  of  Louisiana,  a  privilege 
inuring  only  to  such  as  could  show  their  declaration  of  intention 
to  be  naturalized.  Their  cases  being  thus  differentiated  from  the 
prior  instances  at  New  Orleans  and  Walsenburg,  when  indemnity 
was  offered  to  the  relatives  of  such  of  the  lynched  men  as  were 
found  to  have  remained  faithful  subjects  of  Italy,  the  precedent 
then  set  is  only  applicable  now  so  far  as  it  eliminates  all  claim  by 
Italy  on  behalf  of  those  men  who  were  ascertained  to  have  exer- 
cised the  civil  rights  of  aliens  lawfully  admitted  to  citizenship  in 
this  country. 

' l  Whether  or  not  any  obligation  rests  upon  the  Federal  Govern- 
ment under  the  circumstances — a  matter  as  respects  which  the 
Government  has  thus  far  reserved  its  decision — the  existence  or 
the  absence  of  such  obligation  cannot  diminish  the  feelings  of  ab- 
horrence with  which  all  good  citizens  must  view  such  brutal  acts 
of  blind  vindictiveness  in  defiance  of  the  justice  of  a  Common- 
wealth and  in  disparagement  of  its  good  name." 

The  subject  was  closed  by  an  appropriation  by  Congress  in  the 
deficiency  act  of  July  9,  1897,  of  $6,000,  which  was  stated  to  have 
been  made  "out  of  humane  consideration  and  without  reference 
to  the  question  of  liability  therefor,  to  the  Italian  Government,  as 
full  indemnity  to  the  heirs  of  three  of  its  subjects,  Salvatore 
Arena,  Guiseppe  Venturella  and  Lorenzo  Salardino,  who  were 
taken  from  jail  and  lynched  in  Louisiana  in  1896.  "74 

§  540.  Other  lynching  of  Italians. — The  Italian  government  in 
another  case  felt  called  upon  to  characterize  as  "a  denial  of  jus- 
tice, a  flagrant  violation  of  contractual  conventions,  and  a  grave 
offense  to  every  human  and  civil  sentiment, ' '  the  lynching  of  cer- 

74  30    Stats.    106.     The    same    act  teenth    day   of   July,    eighteen   hun- 

contained  an  appropriation  ' '  To  pay,  dred  and  ninety-two,  on  the  public 

out   of  humane  consideration,  with-  highway  near  the  rifle  range  of  Fort 

out  reference  to  the  question  of  lia-  Snelling,  by  a  shot  fired  by  one  of  a 

bility   therefor,   to   the   German   Gov-  party  of  United  States  soldiers  en- 

ernment,  as  full  indemnity  to  Chris-  gaged  in  target  practice,  three  thou- 

topher   Schmidt,   a   German   subject,  sand  dollars." 
for    injuries    received    on    the    four- 


529         WOUNDING   OF   A   BRITISH   SUBJECT   AT   NEW   ORLEANS.       [§    541 

tain  Italians  at  Erwin,  Mississippi,  and  the  failure  of  the  local  au- 
thorities to  prosecute  and  punish  the  perpetrators.  The  crime 
was  committed  under  the  cover  of  darkness,  and  neither  the  coro- 
ner's inquest  nor  the  investigation  by  the  grand  jury  was  able  to 
discover  their  identity.  The  Italian  embassy,  in  their  protest,  al- 
luded to  failure  of  Congress  to  confer  jurisdiction  in  such  cases  on 
the  federal  courts,  as  recommended  by  the  President,  and  stated 
that  until  such  power  was  conferred,  the  Italian  government 
would  have  reason  to  complain  of  violation  of  the  treaties  to  its 
injury,  and  would  not  cease  from  denouncing  "the  systematic  im- 
punity enjoyed  by  crime  and  to  hold  the  federal  government  re- 
sponsible therefor."  The  Department  of  State  transmitted  the 
protest  to  the  Committees  of  the  Senate  and  House  of  Representa- 
tives, which  had  under  consideration  the  recommendation  of  the 
President  that  indemnity  should  be  tendered  to  the  families  of 
the  victims  and  that  legislation  should  be  enacted  conferring  upon 
the  federal  courts  original  jurisdiction  of  offenses  against  aliens.75 
The  sum  of  $5,000  was  appropriated  by  Congress  using  the  usual 
formula,  "out  of  humane  consideration,  without  reference  to  the 
question  of  liability  therefor  to  the  Italian  Government."  76 

The  lynching  on  July  21,  1899,  of  five  persons  of  Italian  origin 
by  a  mob  at  Tallulah,  Louisiana,  became  the  subject  of  correspond- 
ence with  the  Italian  government,  and  induced  President  Mc- 
Kinley  to  urge  Congress  to  confer  upon  the  federal  courts  juris- 
diction in  this  class  of  international  cases.77 

§  541.     Wounding  of  a  British  subject  at  New  Orleans. — The 

British  ambassador,  in  presenting  a  claim  for  compensation  to  a 
British  subject  injured  at  New  Orleans  in  1895,  expressed  the  hope 
that  the  government  of  the  United  States  would  take  such  action 
as  might  be  necessary  to  obtain  from  Congress  or  otherwise  the 
relief  to  which  he  was  so  justly  entitled.  The  person  injured  was 
a  purser  on  a  British  steamship,  and  while  he  was  discharging 
his  duties  on  the  wharves  he  was,  without  provocation  or  admoni- 
tion, shot  by  a  body  of  armed  men.  The  rioters  did  not  intend  to 
shoot  him,  but  he  was  injured  in  a  volley  fired  at  laborers,  whom 

T5  For.    Eel.    1901,    283,    285,    287,  76  33  Stats.  1032. 

289,    292,    293,    297-299;    6    Moore's  "  For.    Eel.    1899,    440,    441,    444, 

Inst.  Law.  Dig.  849.  447,  448,  453-459,  463. 
Treaties — 34 


§    542]       RESPONSIBILITY  OF  GOVERNMENT  FOR.  MOB  VIOLENCE.  530 

the  rioters  attempted  to  prevent  from  working  on  the  levee.  Af- 
ter the  shooting,  the  local  authorities  of  Louisiana  arrested  and 
indicted  six  men  for  an  assault  with  intent  to  commit  murder, 
but  as  the  purser  had  returned  to  England  and  was  not  present 
when  the  cases  were  called  for  trial,  it  was  stated  by  the  prosecut- 
ing officer  that  they  could  not  be  tried  in  his  absence. 

The  Ambassador  referred  to  the  article  of  the  treaty  of  com- 
merce of  1815  declaring  that  "the  merchants  and  traders  of  each 
nation  respectively  shall  enjoy  the  most  complete  protection  and 
security  for  their  commerce."  He  stated  that  certain  societies 
had  for  some  months  prior  to  the  shooting  attempted  forcibly 
to  prevent  the  employment  of  colored  laborers  in  loading  and  un- 
loading of  ships,  and  that  in  consequence  of  their  lawless  pro- 
ceedings foreign  ships  and  property  were  exposed  to  great  dan- 
ger. The  foreign  consuls  of  the  port  had  appealed  for  protection 
to  foreign  shipping,  but  none  was  afforded.  At  the  time  the 
shooting  was  rn  progress  the  few  policemen  in  the  vicinity  con- 
cealed themselves  for  safety  behind  cotton  bales,  and  the  police, 
it  was  alleged,  had  allowed  the  rioters  to  assemble  in  a  building 
in  which  they  maintained  an  arsenal  of  rifles,  revolvers  and  other 
deadly  weapons. 

§  542.  Appropriation  by  Congress. — The  governor  of  Louisi- 
ana, to  whom  a  copy  of  the  correspondence  had  been  communi- 
cated, returned,  in  reply,  a  report  of  the  attorney  general  of  the 
state.  The  latter  denied  that  there  was  any  failure  on  the  part 
of  the  state  authorities  to  protect  the  commerce  of  the  city,  and 
stated  that  the  governor  had  called  out  the  militia  and  had  given 
full  and  ample  protection  to  the  commerce  of  the  city  as  soon  as 
practicable  after  the  threatening  situation  was  called  to  his  at- 
tention. He  stated,  further,  that  the  rioting  happened  early  in 
the  morning  before  the  arrival  of  the  governor,  and  that  no  blame 
attached  to  him  nor  to  any  other  state  authority.  Finally,  Con- 
gress by  the  deficiency  act  of  June  8,  1896,  appropriated  $1,000 
to  the  British  government  as  full  indemnity,  making  the  usual 
reservation  that  it  was  done  out  of  humane  consideration,  and 
without  reference  to  the  question  of  liability.78 

78  For.  Eel.  1895,  I,  686,  689,  690,  691,  694,  696;  For.  Eel.  1896,  300;  6 
Moore's  Int.  Law  Dig.  850. 


531  HANGING   OF   A   MEXICAN   IN    CALIFORNIA.       [§§    543,    544 

§  543.  Hanging  of  a  Mexican  in  California. — A  Mexican, 
named  Moreno,  and  another  individual  were  arrested  and  lodged 
in  jail  at  Yreka,  California,  charged  with  having  shot  two  per- 
sons, one  fatally.  Both  were  identified  by  one  of  the  wounded 
men,  and  the  two  persons  arrested,  and  two  others,  all  of  whom 
were  accused  of  murder,  were  taken  by  a  mob  from  the  jail  to 
the  court-house  park,  and  hanged.  A  demand  was  made  by  the 
Mexican  Minister  for  the  punishment  of  the  persons  engaged  in 
the  lynching  and  for  the  payment  of  a  suitable  indemnity  to  the 
family  of  Moreno.  The  governor  of  California,  at  the  request  of 
the  Department  of  State,  investigated  the  affair  and  reported 
that  he  took  steps  shortly  after  the  lynching  to  secure  the  pun- 
ishment of  the  guilty  parties,  but  that  no  clue  to  the  identity  of 
the  persons  concerned  had  been  discovered,  and  that,  conse- 
quently, the  grand  jury  had  failed  to  find  an  indictment,  and  in  a 
subsequent  report  he  declared  that  he  did  not  consider  it  within 
the  limits  of  possibility  that  any  person  concerned  in  the  affair 
would  ever  divulge  it.  The  Mexican  government,  on  receiving 
copies  of  these  reports,  renewed  its  request  for  indemnity,  and 
Mr.  Sherman,  Secretary  of  State,  in  his  report  to  the  President  on 
January  14,  1898,  recommended  that  the  same  course  be  pursued 
in  the  case  of  Moreno  as  was  taken  in  the  case  of  the  lynching  of 
Italian  subjects  at  Hahnville,  Louisiana,  "and  that  Congress  be 
requested,  without  question  of  the  liability  of  the  United  States, 
to  appropriate  the  sum  of  $2,000  as  full  indemnity  to  his  heirs." 
This  recommendation  was  carried  into  effect  by  the  act  of  July 
7,  1898,  appropriating  $2,000  to  be  paid  "out  of  humane  con- 
sideration, without  reference  to  the  question  of  liability  therefor, 
to  the  Mexican  government,  as  full  indemnity  to  the  heirs  of 
Luis  Moreno,  who  was  lynched  in  1895  at  Yreka,  California. "  79  A 
similar  lynching  occurred  in  Lasalle  county,  Texas,  of  a  Mexican 
citizen  named  Florentine  Suaste,  and  on  March  3,  1901,  Congress 
appropriated  a  similar  amount  on  similar  terms  to  be  paid  to  the 
Mexican  government  as  indemnity  to  his  heirs.80 

§  544.  Responsibility  of  government  for  boycott. — The  govern- 
ment cannot  recognize  any  obligation  on  its  part  to  indemnify 
foreign  residents  against  whom  a  boycott  is  conducted.  They 

79  30   Stats.   653;   H.   Doc.   237,   o-l  s"  31  Stats.   1010. 

Dong.  2  Sess. 


§    544]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  532 

have  recourse  to  the  courts,  where  they  can  obtain  the  full  relief 
to  which  they,  in  law,  are  entitled. 

Claims  on  behalf  of  several  hundred  Chinese  subjects  who  were 
residing  in  Butte,  Montana,  were  presented  by  a  note  of  July  6, 
1901,  through  the  Chinese  Minister  at  Washington,  who  alleged 
that  the  Chinese  claimants  had  sustained  damages  in  the  sum  of 
$500,000  for  injuries  suffered  by  a  boycott  against  them  by  vari- 
ous labor  organizations  of  that  city.  An  injunction  had  been  is- 
sued by  the  federal  court  restraining  the  defendants  from  the  acts 
complained  of,  but  the  claimants  insisted  that  the  conspirators 
were  insolvent,  and  were  still  attempting  to  accomplish  their  de- 
sign by  clandestine  means,  and  that  no  remedy  could  be  obtained 
by  instituting  proceedings  against  the  local  authorities. 

Mr.  Hay,  Secretary  of  State,  in  his  letter  of  December  4,  1901,  to 
Mr.  Wu,  Chinese  Minister,  declared  that  the  ordinary  rule  is  that 
diplomatic  intervention  is  improper  in  any  case  where  ample  judi- 
cial remedies  exist,  and  that  the  damages  suffered  could  have 
been  avoided  by  a  prompt  appeal  to  the  court,  and  that  the  fail- 
ure and  neglect  of  the  Chinese  subjects  to  avail  themselves  of 
their  remedial  rights  could  not  make  the  United  States  culpable 
and  responsible  for  the  resulting  damages.  "The  statement  that 
the  conspirators,"  said  Mr.  Hay,  "are  still  seeking  to  execute 
their  conspiracy  by  clandestine  means  is  one  which,  to  justify  ac- 
tion, should  be  sustained  by  proofs,  on  the  submission  of  which 
to  the  court  it  is  not  doubted  that  the  penalties  for  disobeying  the 
injunction  will  be  applied. 

"The  statement  that  no  remedy  could  be  found  against  the  un- 
lawful action  of  the  city  or  county  authorities  in  aid  of  the  con- 
spirators, the  Department  is  unable  to  accept  as  correct  in  point 
of  law. 

"The  Department  is  glad  to  be  able  to  assure  you  that  while 
the  action  of  the  Federal  court  is  sufficient  proof  that  the  rights 
of  the  subjects  of  the  Empire  of  China  domiciled  in  the  city  of 
Butte  will  be  protected  and  enforced  by  the  judiciary,  it  may  yet 
add  that  the  Executive  will  not  fail,  should  the  case  arise  justify- 
ing its  interposition,  to  use  all  its  power  to  secure  to  them  all  the 
rights,  privileges,  immunities,  and  exemptions  guaranteed  by  the 
United  States  Constitution  and  by  treaty  between  the  Govern- 
ment of  the  United  States  and  China/'81 

81  For.  Eel.  1901,  127. 


533  MUNICIPAL   CORPORATIONS.  [§    545 

Again,  Mr.  Sherman,  Secretary  of  State,  on  March  31,  1897,  re- 
plying to  a  complaint  of  Mr.  Hoshi,  Japanese  Minister,  of  the  fail- 
ure of  the  local  authorities  to  prevent  the  enforcement  of  a  boy- 
cott against  Japanese  subjects  at  Butte,  Montana,  stated  that  the 
attorney  general  of  the  United  States  had  advised  that  no  federal 
statute  existed  which  made  the  boycott  a  criminal  offense  against 
the  United  States,  and  that  the  persons  injured  must  seek  redress 
by  suit.82 

§  545.  Responsibility  of  municipal  corporation  for  damages  by 
mobs. — It  is  not  strictly  within  our  object  to  discuss  the  responsi- 
bility of  municipal  corporations  for  injuries  inflicted  on  persons 
and  property  by  mob  violence.  The  obligation  of  a  city  to  re- 
spond in  damages  for  injuries  arising  from  this  cause  does  not  de- 
pend upon  treaty  obligations,  but  inasmuch  as  such  violence  is 
often  directed  against  foreign  residents,  a  brief  statement  of  some 
of  the  principles  that  govern  will  be  given.  In  the  first  place  it 
may  be  observed  that  a  municipal  corporation  is  not  responsible 
at  common  law  for  damages  occasioned  by  mobs.83  "The  right 
to  reimbursement  for  damages  caused  by  a  mob  or  riotous  as- 
semblage of  people,"  says  Mr.  Chief  Justice  Field,  "is  not  founded 
upon  any  contract  between  the  city  and  the  sufferers.  Its  liabil- 
ity for  the  damages  is  created  by  a  law  of  the  legislature,  and  can 
be  withdrawn  or  limited  at  its  pleasure.  Municipal  corporations 
are  instrumentalities  of  the  state  for  the  convenient  administra- 
tion of  government  within  their  limits.  They  are  invested  with 
authority  to  establish  a  police  to  guard  against  disturbance,  and 
it  is  their  duty  to  exercise  their  authority  so  as  to  prevent  vio- 
lence from  any  cause,  and  particularly  from  mobs  and  riotous  as- 
semblages. It  has,  therefore,  been  generally  considered  as  a  just 
burden  cast  upon  them  to  require  them  to  make  good  any  loss 
sustained  from  the  acts  of  such  assemblages  which  they  should 

*  For.  Eel.   1897,  368.  Prather    v.    Lexington,    13    B.    Mon. 

s3  Louisiana  v.  Mayor  etc.  of  New  (Ky.)  559,  56  Am.  Dec.  585;  Ward 

Orleans,  109  U.  S.  285,  3  Sup.  Ct.  r.  Louisville,  16  B.  Mon.  (Ky.)  184; 

Rep.  211,  27  L.  ed.  936;  New  Or-  Chicago  League  Ball  Club  v.  Chicago, 

leans  v.  Abbagnato,  62  Fed.  240,  77  111.  App.  124;  Western  College  of 

10  C.  C.  A.  361,  23  U.  S.  App.  533;  Homeopathic  Medicine  v.  Cleveland, 

Hart  v.  Bridgeport,  13  Blatchf.  (U.  12  Ohio  St.  375;  Eobinson  v.  Green- 

S.)  289,  Fed.  Cas.  No.  6149;,Balti-  ville,  42  Ohio  St.  629,  51  Am.  Kep. 

more  v.  Pouetney,  25  Md.  107;  857. 


§    54  6  J       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  534 

have  repressed.  The  imposition  has  been  supposed  to  create,  in 
the  holders  of  property  liable  to  taxation  within  their  limits,  an 
interest  to  discourage  and  prevent  any  movements  tending  to 
such  violent  proceedings.  But  however  considered,  the  imposi- 
tion is  simply  a  measure  of  legislative  policy,  in  no  respect  resting 
upon  contract,  and  subject  like  all  other  measures  of  policy  to 
any  change  the  legislature  may  see  fit  to  make,  either  in  the  ex- 
tent of  the  liability  or  in  the  means  of  its  enforcement." 

§  546.  Liability  imposed  by  statute. — But  in  many  states  stat- 
utes have  been  passed  placing  a  liability  upon  municipal  corpora- 
tions for  injuries  caused  by  mob  violence.  The  liability,  of  course, 
will  then  depend  upon  the  language  of  the  statute.  If  the  stat- 
ute provides  that  the  party  injured  shall  not  recover  if  it  appears 
that  the  damage  "was  occasioned  or  in  any  manner  aided,  sanc- 
tioned or  permitted  by ' '  his  carelessness  or  negligence,  or  unless  he 
"shall  have  used  all  reasonable  diligence  to  prevent  such  damage, 
and  shall  have  used  all  reasonable  diligence  to  notify ' '  the  mayor  or 
sheriff  "of  any  threat  or  attempt  to  commit  such  injury  to  his 
property  by  any  mob,  and  of  the  facts  brought  to  his  knowl- 
edge, "  he  is  not  entitled  to  recover  from  a  municipal  corporation 
for  the  property  destroyed,  unless,  if  he  had  knowledge  of  the 
pending  danger,  he  used  reasonable  diligence  to  notify  the  proper 
officer  of  the  apprehended  danger  to  his  property.  Nor  can  he  re- 
cover damages  under  such  a  statute  if  he  instigated  or  partici- 
pated in  the  riot.85  The  liability,  however,  must  be  clearly  im- 
posed by  statute,  and  will  not  arise  from  a  provision  of  the  char- 
ter declaring  it  to  be  the  duty  of  a  city  to  preserve  the  peace  and 
to  prevent  disturbances  and  disorderly  assemblages.86 

84  Louisiana  v.  Mayor  etc.  of  New  Kep.  321,  53  N.  E.  68,  45  L.  B.  A. 
Orleans,  supra.  848;    Chicago    League    Ball    Club    v. 

85  Wing  Chung  v.  Los  Angeles,  47  Chicago,  77  111.  App.  124;  Fauvia  v. 
Cal.    531.     See,    also,    Bank    of    Cali-  New  Orleans,  20  La.  Ann.  410 ;  Folsom 
fornia  v.  Shaber,  55  Cal.  322.  v.    New   Orleans,    28    La.    Ann.    936; 

86  Western  College  of  Homeopathic  Chadbourne   v.    Newcastle,   48   N.    H. 
Medicine    v.   Cleveland,    12    Ohio    St.  196;  Palmer  v.  Concord,  48  N.  H.  211, 
375.      See,  also,  Allegheny  County  v.  97  Am.  Dec.  605;  Luke  v.  Brooklyn, 
Gibson,  90  Pa.  397,  35  Am.  Bep.  670;  43  Barb.  (N.  Y.)  54;  Granfortone  v. 
Matter  of  Pennsylvania   Hall,  5   Pa.  New  Orleans,  61  Fed.   64,  24  L.  K. 
204;  Jolly  v.  Hawesville,  89  Ky.  279,  A    592;  Pennsylvania  Co.  v.  Chicago, 
12  S.  W.  313;  Chicago  v.  Manhattan  8]  Fed.  317. 

Cement  Co.,  178  111.  372,  69  Am.  St. 


535  REPUTATION  OF  DECEASED.          [§§  547,  548 

§  547.  Reputation  of  deceased. — The  statute  of  Kansas  pro- 
vides that  in  actions  against  a  municif  il  corporation  for  damages 
caused  by  a  mob  "the  character,  use  or  manner  of  occupancy  of 
the  property  lost  or  destroyed,  and  the  reputation  of  the  person 
injured,  may  be  given  in  evidence  in  mitigation  of  damages.'*87 
Under  such  a  statute  the  evidence  need  not  be  limited  to  the  gen- 
eral reputation  of  the  deceased,  but  ic  is  proper  to  show  any  mis- 
conduct or  crime  committed  within  a  reasonable  time  prior  to  tbtt 
killing,  which  may  have  had  an  influence  on  the  mob,  or  whicb 
would  affect  the  value  of  his  life  to  his  next  of  kin.88  "In  the  ab- 
sence of  the  statute/'  said  the  ccurt,  "a  civil  action  to  recover 
from  the  city  for  the  death  of  a  person  injured  or  killed  could  not 
be  maintained,  and  those  who  claim  under  it  must  take  the  right 
subject  to  the  limitations  upon  recovery  expressed  in  the  stat- 
ute. Recognizing  that  a  liability  was  being  placed  upon  inno- 
cent citizens  of  the  municipality  is  well  as  upon  those  who  were 
guilty  of  wrongdoing,  the  legislature  provided  that  the  damages 
might  be  diminished  by  showing  the  character  and  use  of  the 
property  lost  or  destroyed,  and  also  the  reputation  and  conduct 
of  the  person  injured.  Under  the  statute  the  bad  reputation  or 
misconduct  of  the  person  killed,  which  may  have  influenced  the 
action  of  the  mob,  or  which  would  affect  the  value  of  his  life  to 
the  father,  was  a  proper  consideration  for  the  jury.  If  the  prop- 
erty destroyed  by  a  mob  is  used  as  a  hiding  place  for  criminals 
or  a  shelter  for  vice,  the  facts  may  be  shown  in  mitigation  of 
damages ;  and  if  the  life  of  the  person  has  been  given  up  to  vice 
and  crime,  that,  too,  may  be  considered  in  determining  the  extent 
of  the  city's  liability."89 

§  548.  Participation  by  owner. — An  owner  of  property  is  not 
required  to  provide  a  police  force  for  the  protection  of  his  prop- 
erty, as  this  is  a  duty  which  is  incumbent  upon  the  city  authori- 
ties. He  cannot  be  charged  with  negligence  for  employing  for- 
eigners who  do  not  speak  English,  nor  can  the  fact  that  his  em 
ployees  constitute  the  greater  part  of  the  mob  be  considered  in 

87  Kan.    Gen.    Stats.    (1889),    pars.  Kan.  246,  48  Pac.  918.     As  to  prov- 
2590,  2591.  ing  under  the  Alabama  statute  that 

88  Adams    v.    City    of    Salena,    58  the    plaintiff    has    enemies    in    the 
Kan.  246,  48  Pac.  918.  neighborhood,   see   De   Kalb   County 

89  Adams    v.    City    of    Salena,    58  r.   Smith,   47   Ala.  407. 


§§  549-551]     RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.     536 

determining  the  city's  liability.  He  and  his  employees  are  only 
required  to  conduct  themselves  as  ordinary,  careful  and  prudent 
men  would  be  expected  to  do  under  similar  circumstances,  and  he 
cannot  be  charged  with  negligence  because  he  and  his  employees 
decline  to  take  human  life  to  preserve  the  property  from  destruc- 
tion.90 But  the  owner  will  not  be  entitled  to  recover,  if  he  has 
instigated  or  participated  in  the  riot.91 

§  549.  Notice  to  be  given. — The  statutes  generally  provide  that 
notice  shall  be  given  to  the  municipal  authorities  of  the  threatened 
violence.92  If  the  notice  required  by  the  statute  has  been  given, 
and  if  it  appears  that  the  destruction  of  the  property  was  in  no 
manner  aided,  sanctioned  or  permitted  by  the  negligence  of  the 
owner,  and  that  he  used  all  reasonable  diligence  to  prevent  the 
damages,  a  prima  facie  case  is  made  by  showing  that  a  riotous 
mob  assembled,  broke  into  a  building,  and  destroyed  and  took 
away  property.93  It  is  held  that  the  notice  may  be  given  ver- 
bally.94 

§  550.  Immaterial  ruling. — If  before  the  commencement  of 
the  riot  the  party  injured  knew  of  the  danger,  and  had  ample  op- 
portunity to  notify  the  municipal  authorities,  a  ruling  of  the 
court  excluding  evidence  that  during  the  riot  he  could  not  have 
reached  the  street  to  notify  such  authorities  is  immaterial.95 

§  551.  Sufficient  time  to  give  notice. — The  provision  requiring 
notice  to  be  given  necessarily  contemplates  that  there  shall  be 
sufficient  time  between  the  threat  or  attempt  and  the  execution  of 
it  to  permit  of  the  giving  of  the  notice,  as  it  is  not  intended  to 

90  Spring  Valley  Coal  Co.  v.  City  Gibson,  90  Pa.  397,  35  Am.  Eep.  670; 
of  Spring  Valley,  65  111.  App.  571,  96  Newberry    v.    New    York,    1    Sweeny 
111.  App.  230.  (N.  Y.),  369;   Salisbury  v.  Washing- 

91  Wing  Chung  v.  Los  Angeles,  47  ton  County,  22  Misc.  Eep.  41,  48  N. 
C'al.  53L  Y.    Supp.    122;    Schiellein    v.    Kings 

82  Solomon    v.    Kingston,    24    Hun  County,   43   Barb.    (N.   Y.)    490. 
(N.    Y.),    562;    Donoghue    v.    Phila-  93  Spring  Valley  Coal  Co.  v.  City 

delphia    County,    2    Pa.    230;    Wing  of.  Spring  Valley,  65  111.  App.  571. 
Chung  v.  Los  Angeles,  47  Cal.  531;  °*  Donoghue  v.  Philadelphia  County, 

Spring   Valley   Coal   Co.   v.    City   of  2  Pa.  230. 

Spring  Valley,   65  111.   App.   571,  96  95  Wong  Chung  v.  Los  Angeles,  47 

111.   App.   230;   Allegheny  County   v.  Cal.  531. 


537  CONSTITUTIONALITY   OF   SUCH   STATUTES.  [§    552 

provide  redress,  available  only  in  cases  where  the  mob  should 
proceed  with  so  much  deliberation  as  to  allow  their  purpose  to  be- 
come known  to  the  person  whose  property  was  about  to  be  de- 
stroyed, and  to  deny  it  in  cases  where  secrecy  should  be  observed, 
and  no  suspicion  should  arise  of  any  unlawful  design  until  it 
had  been  accomplished.96  Under  the  Wisconsin  statute  it  is  held 
that  notice  to  the  mayor  by  an  employer  does  not  inure  to  the 
benefit  of  an  employee.97 

§  552.  Constitutionality  of  such  statutes. — Statutes  of  this 
character  have  been  attacked  as  unconstitutional,  but  the  constitu- 
tional right  of  the  legislature  to  pass  such  laws  has  been  uni- 
formly sustained.  "It  cannot  be  doubted  that  the  general  pur- 
poses of  the  law  are  within  the  scope  of  legislative  authority. 
The  legislature  has  plenary  power  in  respect  to  all  subjects  of 
civil  government,  which  they  are  not  prohibited  from  exercising 
by  the  constitution  of  the  United  States,  or  by  some  provision  or 
arrangement  of  the  Constitution  of  this  state.  This  act  proposes 
to  subject  the  people  of  the  several  local  divisions  of  the  state 
consisting  of  counties  and  cities,  to  the  payment  of  damages  to 
property  in  consequence  of  any  riot  or  mob  within  the  county  or 
city.  The  policy  upon  which  the  act  is  framed  may  be  supposed 
to  be  to  make  good  at  the  public  expense  the  losses  of  those  who 
may  be  so  unfortunate  as,  without  their  own  fault,  to  be  injured 
in  their  property  by  acts  of  lawless  violence  of  a  particular  kind 
which  it  is  the  general  policy  of  the  government  to  prevent ;  and 
further,  and  principally,  we  may  suppose  to  make  it  the  interest 
of  every  person  liable  to  contribute  to  the  public  expense  to  dis- 
courage lawlessness  and  violence  and  maintain  the  empire  of  the 
laws  established  to  preserve  public  quiet  and  social  order.  These 
ends  are  plainly  within  the  purposes  of  civil  government,  and,  in- 
deed, it  is  to  maintain  them  that  governments  are  instituted,  and 
the  means  provided  by  this  act  seem  to  be  reasonably  adapted  to 

36  Moody  v.  Board  of  Supervisors  It  is  not  necessary  to  give  the  notice 

of  Niagara  County,  46  Barb.  (N.  Y.)  if   it    would   have   been   unavailing. 

659.     See,   also,   Salisbury   v.   Wash-  Schiellein  v.  Kings  County,  43  Barb, 

ington  Co.,  22  Misc.  Eep.  41,  48  N.  490.     See,     also,     Long   v.    City     of 

Y.  Supp.  122;  Solomon  v.  Kingston,  Neenah,  128  Wis.  40,  107  N.  W.  10. 
24  Hun  (N.  Y.),  562;  Newberry  v.  9T  Long  v.  City  of  Neenah,  128 

New  York,  1  Sweeny   (N.  Y.),  369.  Wis.  40,  107  N.  W.  10. 


§    553]       RESPONSIBILITY  OF  GOVERNMENT  FOR  MOB  VIOLENCE.  538 

the  purposes  in  view. ' ' 98  Such  statutes  are  not  in  conflict  with 
the  provision  of  the  Constitution  declaring  that  no  person  shall 
be  deprived  of  his  property  without  due  process  of  law." 

§  553.  Liberal  construction. — Such  statutes  are  both  reme- 
dial and  penal  in  their  nature,  and  must  be  liberally  construed.100 
The  Pennsylvania  statute  was  held  to  include  every  form  of 
riotous  disturbance,  large  or  small.  It  was  also  held  not  to  be 
necessary  for  a  property  owner  to  give  notice  to  the  municipal 
authorities  unless  he  possesses  a  knowledge  of  an  intention  on 
the  part  of  the  mob  to  destroy  his  property,  and  there  is  sufficient 
time  intervening  to  enable  him  to  give  the  contemplated  notice; 
where  the  authorities  already  have  knowledge  of  the  intention 
or  attempt  to  destroy  property,  such  a  notice  is  not  necessary.101 
The  liability  of  a  municipal  corporation  to  make  compensation 
for  damages  inflicted  by  a  mob  is  not  limited  by  the  fact  that 
they  are  unable  to  suppress  the  riot.302  A  statute  which  pro- 
vides that  damages  may  be  recovered  for  loss  of  property  or 
injury  to  life  or  limb  applies  to  all  bodily  injuries,  and  is  not 
confined  to  such  injuries  as  result  in  death  or  the  loss  of  a 
limb.103  But  in  the  interest  of  the  taxpayers,  the  courts  should 
see  that  the  claims  are  established  with  reasonable  certainty.104 

98  Darlington    v.    Mayor    of    New  by  a  mob  to  five  hundred  dollars  is 

York,  31  N.  Y.  164,  88  Am.  Dec.  248.  unconstitutional.     Caldwell    v.    Cuy- 

feee,  also,  Underbill  v.  City  of  Man-  ahoga  County,  8  Ohio  Cir.  Dec.  56. 

Chester,    45    N.    H.    214;    County    of  °9  City    of    Tola    v.    Birnbaum,    71 

Allegheny  v.  Gibson,  90  Pa.  397,  35  Kan.  600,  81  Pae.  198. 

Am.   Kep.    670;    City    of   Chicago    v.  10°  County  of  Allegheny  v.   Gibson, 

Cement  Co.,  178  111.  372,  69  Am.  St.  90  Pa.  397,  35  Am.  Kep.  670. 

Eep.   321,   53  N.  E.   68,  45  L.  E.   A.  101  County  of  Allegheny  v.  Gibson, 

848;    Clear    Lake    Water    Works    v.  90  Pa.  397,  35  Am.  Eep.  670. 

Lake  County,  45  Cal.  90;  In  re  Penn-  102  County  of  Allegheny  v.  Gibson, 

sylvania  Hall,  5   Pa.   204;    Williams  90  Pa.  397,  35  Am.  Eep.  670;  Chad- 

v.  City  of  New  Orleans,  23  La.  Ann.  bourne  v.  New  Castle,  48  N.  H.  196; 

507;   Luke  v.   City  of  Brooklyn,  43  Palmer    v.    Concord,    48    N.    H.    211, 

Barb.    54;    Bringham   v.    Bristol,    65  97  Am.  Dec.  605. 

Me.    426,    20    Am.    Eep.    711;    Chad-  lfln  City   of   lola   v.    Birnbaum,    71 

bourn  v.  Town  of  Newcastle,  48  N.  Kan.  600,  81  Pac.  198. 

H.  196;  City  of  Atchison  v.  Irvine,  9  1<H  Fink   v.   City   of   New  Orleans, 

Kan.  350.     A  statute,  however,  lim-  110  La.  84,  34  South.  138. 
iting  the  recovery  by  one  assaulted 


539  COMMON  PURPOSE  OP   CROWD. 

§  554.  Common  purpose  of  crowd. — There  should  be  some  con- 
cert of  action  or  common  intention  among  the  crowd  to  render 
it  a  mob.  Under  the  Wisconsin  statute  it  was  held  that  a  cause 
of  action  was  not  stated  against  a  city  by  a  complaint  that  alleged 
that  the  plaintiff  was  injured,  while  driving  along  a  street  on 
the  evening  of  the  Fourth  of  July,  by  the  explosion  of  a  cannon 
cracker,  thrown  and  exploded  by  some  one  in  a  crowd  of  thirty 
or  more,  who  were  obstructing  the  sidewalk,  and  in  a  tumultuous 
manner  engaged  in  exploding  firecrackers,  but  that  failed  to  al- 
lege that  there  was  any  common  intent  or  purpose  to  injure 
the  plaintiff.105  Still,  in  Kentucky,  where  on  Christmas  Eve  a 
crowd  composed  of  a  thousand  persons  assembled  in  the  main 
street  of  a  city,  and  discharged  missiles  loaded  with  explosives 
at  private  property,  it  was  held  that  the  gathering  constituted  a 
riotous  or  tumultuous  assemblage  of  people  within  the  meaning 
of  the  statute,  and  that  the  city,  having  notice  of  the  danger,  was 
responsible  for  the  damages  inflicted.106  But  although  a  crowd 
may  assemble  for  a  lawful  purpose,  it  may  subsequently  unite  in 
unlawful  action  and  do  injury  for  which  a  city  will  be  liable.107 
Under  the  New  Hampshire  statute  a  city  was  held  liable  for 
damages,  although  the  city  could  not  have  prevented  the  de- 
struction, and  although  none  of  the  rioters  were  inhabitants  of 
the  city.108  And  under  this  statute,  a  newspaper  proprietor  is 
entitled  to  recover  damages  where  his  printing  materials  have 
been  destroyed  by  a  mob.  He  may  recover  for  damages  resulting 
from  the  interruption  or  destruction  of  his  business,  and  for 
injury  to  the  goodwill,  of  his  paper,  to  the  extent  that  such  in- 
terruption and  injury  are  the  direct  and  natural  results  of  the 
attacks  of  the  mob.109  A  city,  however,  will  not  be  liable  where, 
in  the  daytime,  an  old,  unoccupied  building  is  demolished  by  a 
crowd  of  boys  who  disperse  upon  the  appearance  of  a  police 

105  Aaron    v.    City    of    Wausau,    98  ing  Jolley  '&  Admx.  v.  City  of  Hawes- 
Wis.  592,  74  N.  W.  354,  40  L.  E.  A.  ville,  89  Ky.  280,  12  S.  W.  313. 
733.  10T  Solomon    v.    City    of   Kingston, 

106  City  of  Madisonville  v.  Bishop,  24  Hun  (1ST.  Y.),  562. 

113  Ky.  106,  67  S.  W.  269,  57  L.  R.  108  Palmer  v.   City   of   Concord,   48 

A.    130,    citing    State   v.    Brown,    69  N.  H.  211,  97  Am.  Dec.  605. 

Ind.   95,   35   Am.   Rep.   210;    Sanders  109  Palmer  v.   City   of   Concord,   48 

v.  State,  60  Ga.  126,  and  distinguish-  N.  H.  211,  97  Am.  Dec.  605. 


§    554]       RESPONSIBILITY  OF   GOVERNMENT  FOR  MOB  VIOLENCE.  540 


officer,  and  who  show  no  intent  to  resist  opposition.110  A  keeper 
of  a  gambling-house  is  not  entitled  to  recover  for  property  de- 
stroyed in  a  riot  in  such  house  arising  from  a  dispute  as  to  a 
gambling  transaction,  where  the  statute  provides  that  no  one  can 
recover  if  the  destruction  of  his  property  was  caused  by  his  illegal 
or  improper  conduct.111  A  municipal  corporation  is  not  relieved 
from  liability  because  the  state  militia  were  sent  to  the  scene 
of  the  disturbance.112  It  is  no  defense,  under  the  statute  of 
Kansas,  that  the  city  was  unable  to  prevent  the  injury.113  But 
the  fact  that  there  was  no  rioting  or  fighting  or  unnecessary 
noise  will  not  excuse  a  city  from  liability  where  a  crowd  assem- 
bles and  unlawfully  tears  down  buildings  without  notice  or 
warning  to  the  owner,  and  where  the  police  do  not  endeavor  to 
prevent  the  execution  of  the  intention  of  those  who  have  so 
assembled.114  A  municipal  corporation  cannot  relieve  itself  from 
liability  by  showing  that  it  used  all  its  power  to  prevent  the  loss 
of  property,  or  that  it  was  also  protected  by  the  state  and  fed- 
eral governments.115  An  owner  of  property  is  entitled  to  recover 
notwithstanding  the  fact  that  his  employees,  when  attacked  by 


110  Duryea  v.  New  York,  10  Daly 
(N.  Y.),  300. 

111  Underbill  v.  Manchester,  45  N. 
H.    214.     As    to    injuries    caused    to 
property  employed  for  unlawful  pur- 
poses,    see,    also,     Ely    v.     Niagara 
County,   36   N.   Y.   297;   Blodgett   v. 
Syracuse,  36  Barb.  (N.  Y.)  526. 

112  Allegheny  County  v.  Gibson,  90 
Pa.  397,  35  Am.  Eep.  670.     See,  also, 
cases  holding  that  a  city  is  not  re- 
sponsible where  the  acts  have  been 
committed  by  an  organized  body  of 
citizens  acting  for  the  state.     Street 
v.    New   Orleans,    32    La.    Ann.    577; 
and  that  it  may  be  shown  in  mitiga- 
tion of   damages  that  an  ordinance 
of    the    city    was    violated    by    the 
plaintiff  in   exposing  their  property 
in   the   public    market,   Fortunich   v. 
New   Orleans,   14  La.    Ann.    115.     A 
judgment    for    the    plaintiff    is    not 
justified    by    evidence    that    on    the 
afternoon  of  an  election  day  a  crowd, 


varying  in  number  from  e^ght  to 
thirty,  partially  demolished  with  an 
ax,  a  crowbar,  a  rope  and  sticks  an 
occupied  building,  and  removed  parts 
thereof,  where  it  appeared  that  on 
notification  police  officers  proceeded 
to  the  scene,  and  that  the  crowd 
thereupon  dispersed,  one  boy  eleven 
years  of  age  being  arrested,  and 
where  it  appeared  that  the  city  had 
no  notice  of  any  such  acts  or  of  any 
threat  to  perform  them,  and  that  it 
had  no  reason  to  apprehend  that  an 
attempt  would  be  made  to  injure  the 
property.  Adamson  v.  City  of  New 
York,  96  N.  Y.  Supp.  907,  110  App. 
Div.  98. 

113  City   of   lola   v.   Birnbaum,    71 
Kan.  600,  81  Pac.  198. 

114  Marshall  v.  City  of  Buffalo,  176 
N.  Y.  545,  68  N.  E.  1119;  S.  C.,  71 
N.  Y.  Supp.  719,  63  App.  Div.  603. 

115  City  of  Chicago  v.  Pennsylvania 
Co.,  119  Fed.  497. 


541  COMMON  PURPOSE  OF  CROWD.  j"£    55* 

the  mob,  might  have  lawfully  resisted,  but  instead  of  doing  si> 
left  the  property  on  account  of  fear  of  the  mob.116 

116  Spring  Valley  Coal  Co.  v.  Oitv  formal  and  express,  but  may  ba 
of  Spring  Valley,  96  111.  App.  230  inferred  from  the  facts  and  eirsuzn- 
The  agreement  to  do  the  unlawful  stances.  Mitchell's  Admr.  v.  Corn- 
acts  essential  to  constitute  a  crowd  missioners  of  Champaign  County,  » 
an  unlawful  assemblage  need  not  be  Ohio  St.  &  C.  P.  Dec.  821. 


555]  CLAIMS    AGAINST    GOVERNMENTS.  542 


CHAPTER  XVI. 

CLAIMS  AGAINST  GOVERNMENTS. 

§  555.  In  general. 

§  556.  Spanish  war  claims  commission. 

§  557.  Citizen  must  seek  redress  through  .his  government. 

§  558.  Foreigners  excluded  from  suing. 

§  559.  Suits  by  one  state  against  another. 

§  560.  Presentation   through   Department  of    State. 

§  561.  Action   against   other   governments. 

§  562.  Eules  of  Department  of  State. 

§  563.  Discretion  of  government. 

§  564.  Policy  of  Great  Britain. 

§  565.  Objections  to  presentation  of  claims. 

§  566.  Fraud  in  claim. 

§  567.  Citizenship. 

§  568.  Policy  of  the  United  States. 

§  569.  Naturalization  has  no  retroactive  effect. 

§  570.  Assignability  of  right. 

§  571.  Assignment  of  award. 

§  572.  Claim  of  bankrupt. 

§  573.  Eesort  to  local  remedies. 

§  574.  Courts  of  South  American  republics. 

§  575.  Claim  based  on  treaty  with  Italy. 

§  576.  Another  instance. 

§  577.  Discrimination  against  American  citizens. 

§  578.  Moneys   received    from    foreign    governments    in    trust    for    American 

citizens. 

§  579.  Payment  of  interest  in  claims. 

§  580.  Default  not  attributed  to  government. 

§  581.  Questions  involving  title  to  real  estate. 

§  582.  Claims  arising  on  contracts. 

§  583.  Court  of  claims. 

§  584.  Jurisdictional  requirements. 

§  585.  The  Bowman  Act. 

§  586.  Liberal  construction  of  act. 

§  587.  The  Tucker  Act. 

§  588.  Concurrent  jurisdiction  of  district  and  circuit  courts. 

§  589.  Procedure   under   the   act. 

§  590.  Judgments  and  appeals. 

§  555.     In   general. — Claims    against    governments    sometimes 
arise  under  the  provisions  of  treaties,  but  usually  are  based  upon 


543  SPANISH   WAR   CLAIMS   COMMISSION.  [§    556 

the  general  principles  of  international  law.  We  shall  not  ex 
amine  in  detail  the  many  cases  in  which  claims  have  been  pre- 
sented either  against  the  government  of  the  United  States  or  by 
the  United  States  in  behalf  of  its  own  citizens  against  other  gov- 
ernments, but  shall  state  some  of  the  more  general  rules  applic- 
able to  claims  against  governments.1  The  treaty  concluded  be- 
tween the  United  States  and  Spain  on  December  10,  1898,  pro- 
vided: "The  United  States  and  Spain  mutually  relinquish  all 
claims  for  indemnity,  national  and  individual,  of  every  kind,  of 
either  government,  or  of  its  citizens  or  subjects,  against  the  other 
government,  that  have  arisen  since  the  beginning  of  the  late  in- 
surrection in  Cuba,  and  prior  to  the  exchange  of  ratifications  of 
the  present  treaty,  including  all  claims  for  indemnity  for  the  cost 
of  the  war.  The  United  States  will  adjudicate  and  settle  the 
claims  of  its  citizens  against  Spain  relinquished  in  this  article. ' ' 

§  556.  Spanish  war  claims  commission.— In  1901,  pursuant 
to  this  provision  of  the  treaty,  Congress  passed  an  act  authoriz- 
ing the  President  to  appoint  five  suitable  persons,  learned  in  the 
[aw,  to  constitute  a  commission,  "whose  duty  it  shall  be,  and  it 
shall  have  jurisdiction,  to  receive,  examine  and  adjudicate  all 
claims  of  citizens  of  the  United  States  against  Spain,  which  the 
United  States  agreed  to  adjudicate  and  settle"  by  the  treaty. 
The  commission  "shall  adjudicate  said  claims  according  to  the 
merits  of  the  several  cases,  the  principles  of  equity,  and  of  in- 
ternational law."  The  commission  was  empowered  to  make  all 
necessary  or  convenient  rules  for  the  transaction  of  business,  the 
rules  and  mode  of  procedure  to  conform,  so  far  as  practicable,  to 
the  mode  of  procedure  and  practice  of  the  circuit  courts  of  the 
United  States.  The  award  made  in  favor  of  any  claimant,  it 
was  provided,  should  be  only  for  the  amount  of  the  actual  and 
direct  damage  which  the  claimant  should  prove  that  he  had  sus- 
tained. No  award  was  to  be  made  for  remote  or  prospective 
damages,  nor  was  interest  to  be  allowed  on  any  claim.  All 
awards  were  to  be  final,  unless  a  new  trial  or  hearing  should  be 
granted.  The  commission,  when  in  doubt,  it  was  provided,  as  to 

1  The  numerous  cases  of  this  char-       tions  and  Moore 's  International  Law 
acter  that  have  arisen  may  be  found       Digest, 
in    Moore's    International    Arbitra-  -  30  U.  S.  Stats,  at  Large,  1757. 


§§  557,  558]  CLAIMS  AGAINST  GOVERNMENTS.  544 

any  question  of  law  arising  upon  the  facts  before  them,  might 
state  the  facts  and  the  question  of  law  so  arising,  and  certify  the 
same  to  the  supreme  court  of  the  United  States  for  its  decision/'5 

§  557.  Citizen  must  seek  redress  through  his  government— 
If  a  citizen  of  one  country  is  injured  by  another,  redress  for  such 
act  must  be  sought  through  his  own  government.  "One  nation 
treats  with  the  citizens  of  another,"  says  Mr.  Chief  Justice 
Waite,  "only  through  their  government.  A  sovereign  cannot  be 
sued  in  his  own  courts  without  his  consent.  His  own  dignity, 
as  well  as  the  dignity  of  the  nation  he  represents,  prevents  his 
appearance  to  answer  a  suit  against  him  in  the  courts  of  another 
sovereignty,  except  in  performance  of  his  obligations,  by  treaty 
or  otherwise,  voluntarily  assumed.  Hence,  a  citizen  of  one  na- 
tion wronged  by  the  conduct  of  another  nation  must  seek  redress 
through  his  own  government.  His  sovereign  must  assume  the 
responsibility  of  presenting  his  claim,  or  it  need  not  be  considered. 
If  this  responsibility  is  assumed,  the  claim  may  be  prosecuted  a*s 
one  nation  proceeds  against  another,  not  by  suit  in  the  courts, 
as  of  right,  but  by  diplomacy,  or,  if  need  be,  by  war.  It  rests 
with  the  sovereign  against  whom  the  demand  is  made  to  deter- 
mine for  himself  what  he  wrill  do  in  respect  to  it.  He  may  pay 
or  reject  it;  he  may  submit  to  arbitration,  open  his  own  courts 
to  suit,,  or  consent  to  be  tried  in  the  courts  of  another  nation. 
All  depends  upon  himself. ' '  4 

§  558.  Foreigners  excluded  from  suing. — The  supreme  court 
of  the  United  States  decided  that  subjects  of  other  powers,  who 
gave  aid  and  comfort  to  the  enemy  during  the  war  of  the  Rebel- 
lion were  excluded  from  suing  for  such  proceeds  under  the  aban- 
doned and  captured  property  act.  "It  may  be  that  foreigners," 
said  the  court,  "who  have  given  aid  and  comfort  to  the  enemies 
of  the  United  States  are  in  equity  as  much  entitled  to  the  privi- 
leges of  the  act  as  the  pardoned  enemies  themselves;  but  that  is 
for  Congress  to  determine,  and  not  for  us.  We  have  decided  that 
the  pardon  closes  the  eyes  of  the  courts  to  the  offending  acts, 
or,  perhaps  more  properly,  furnishes  conclusive  evidence  that  they 

3  31  U.  S.  Stats,  at  Large,  879. 
4  United  States  v.  Dickelman,  92  U.  S.  520,  23  L.  ed.  742. 


545  SUITS    BY    ONE    STATE    AGAINST    ANOTHER.  [§    559 

never  existed  as  against  the  government.  It  is  with  the  legisla- 
tive department  of  the  government,  not  the  judicial,  to  say 
whether  the  same  rule  shall  be  applied  in  cases  where  there  can 
be  no  pardon  by  the  President.  A  pardon  of  an  offense  removes 
the  offending  act  out  of  sight ;  but  if  there  is  no  offense  in  the 
eye  of  the  law,  there  can  be  no  pardon.  Consequently,  the  acts 
which  are  not  extinguished  by  a  pardon  remain  to  confront  the 
actor.  "5 

§  559.  Suits  by  one  state  against  another. — A  state  cannot 
permit  the  use  of  its  name  in  a  suit  for  the  benefit  of  one  of  its 
own  citizens  against  another  state,  as  it  cannot  be  deemed  to  be 
an  independent  nation  possessing  the  right  of  making  an  impera- 
tive demand  upon  another  independent  state  for  the  payments 
of  debts  due  to  citizens  of  the  former;  nor  can  it  create  a  con- 
troversy by  assuming  the  prosecution  of  such  debts.6  The  cir- 
cuit court  of  the  United  States  has  no  jurisdiction  to  entertain  a 
suit  by  aliens,  the  object  of  which  is  to  enjoin  the  attorney  gen- 
eral and  the  attorneys  of  the  several  countries  of  a  state  from 
bringing  suit  in  the  name  of  the  state  for  the  purpose  of  enforc- 
ing the  collection  of  taxes,  for  whose  payment  coupons  of  the 
bonds  of  such  state  had  been  tendered.  Such  a  suit  is,  in  law 
and  in  effect,  a  suit  by  the  subjects  of  a  foreign  state  against  a 
state  of  the  Union,  and  comes  within  the  prohibition  of  the 
eleventh  amendment  to  the  Constitution.  There  exists  no  rem- 
edy against  the  state  for  a  breach  of  its  contract,  and  the  at- 
tempt indirectly  by  injunction  to  compel  the  specific  performance 
of  the  contract,  by  forbidding  the  performance  of  those  acts 
which  constitute  the  breaches  of  the  contract,  is  in  effect,  even 
though  not  in  form,  a  suit  against  the  state.7  While  a  suit 

5  Young   v.   United   States,   97   U.  8  Sup.  Ct.  Eep.  164,  31  L.  ed.  216; 
S.  68,  24  L.  ed.  992.  Pennoyer   v.    McConnaughy,    140   U. 

6  New    Hampshire     v.    Louisiana,  S.   12,   11   Sup.   Ct.   Eep.   702,   35   L. 
108  U.   S.   90,   2   Sup.   Ct.   Eep.   183,  ed.  366.     Where  the  state  is  the  real 
27  L.  ed.  661.     In  suits  against  of-  party,  a  removal  has  been  refused, 
ficers    of    a    state,    jurisdiction    has  Ferguson    v.    Eoss,    38    Fed.    163,    3 
been  denied  where  the  suits  were  in  L.  E.  A.  324;  State  v.  Columbus  etc. 
effect  against  the  state.  Cunningham  E.   Co.,  48  Fed.   628. 

v.  Macon  etc.  E.  E.  Co.,  109  U.  S.  7  Ex  parte  Ayers,  123  U.  S.  489, 

450,  3  Sup.  Ct.  Eep.  295,  27  L.  ed.       8  Sup.  Ct.  Eep.  164,  31  L.  ed.  216. 
993;  Ex  parte  Ayers,  123  U.  S.  489, 
Treaties — 35 


§§    560,    561]  CLAIMS    AGAINST    GOVERNMENTS.  546 

against  the  officers  of  a  state  to  compel  them  to  perform  its  con- 
tracts is,  in  substance,  a  suit  against  the  state  itself,  still  an  in- 
junction may  be  issued  against  an  officer  of  a  state  to  prevent 
him  from  executing  a  statute  of  the  state  conflicting  with  the 
constitution  of  the  United  States,  when  by  such  execution  the 
rights  and  privileges  of  a  private  person  would  be  violated  and 
destroyed.8 

§  560.  Presentation  through  Department  of  State. — Aliens 
who  desire  to  present  claims  against  the  United  States  for  un- 
liquidated damages  must  present  them  to  the  Department  of 
State,  through  diplomatic  agencies.9  Mr.  Fish,  Secretary  of 
State,  where  claims  were  presented  by  French  citizens  and  other 
aliens  through  Congress  to  the  Committee  on  War  Claims  said: 
"I  have  to  remark  that  such  presentation  is  entirely  inconsistent 
with  usage,  which  requires  that  aliens  must  address  this  govern- 
ment only  through  the  diplomatic  representatives  of  their  own 
governments.  This  Department  refuses  to  entertain  applications 
or  to  receive  claims  from  aliens,  except  through  a  responsible 
presentation  by  the  regularly  accredited  representative  of  their 
government. ' ' 10 

§  561.  Action  against  other  governments. — Before  the  United 
States  will  present  the  claim  of  one  of  its  citizens  to  another  gov- 
ernment, there  must  be  presented  to  the  Secretary  of  State  a  peti- 
tion and  a  sworn  statement  showing  in  detail  the  injury  suffered, 
and  such  proof  as  may  be  secured  to  sustain  the  averments  of 
the  petition.11  If  the  claim  arises  from  contract,  the  diplomatic 
representative  of  the  United  States  will  not  interfere  in  the  ab- 
sence of  specific  instructions,  and  if  it  arise  from  a  tort,  he  will 

8  Pennoyer  v.   McConnaughy,   140  10  To  Mr.  Lawrence,  M.  C.,  April 
U.   S.   12,   11   Sup.   Ct.  Eep.   699,   35       22,  1874,  Magoon 's  Eep.  340. 

L.  ed.  363.  "  Mr.  Marcy,  Secretary  of  State, 

9  Mr.    Magoon,    Law    Officer,    Di-  to  Mr.  Grain,  Feb.  24,  1854,  42  MS. 
vision  of  Insular  Affairs,  War  Dept.,  Dom.    Let.    244;    Mr.    Uhl,    Acting 
Feb.    6,    1901,    Magoon  'a    Eep.    338;  Secretary  of  State,  to  Attorney  Gen- 
Eeport  No.  498,  Committee  on  War  eral,  June   23,   1894,   197  MS.   Dom. 
Claims,   May   2,   1874,  43   Cong.    1st  Let.  449. 

Sess. 


547  RULES  OF  DEPARTMENT  OF  STATE.  [  §    562 

also  await  instructions  before  acting,  unless  an  assault  has  been 
made  against  the  person  of  the  claimant,  or  there  is  an  immediate 
necessity  for  acting  before  it  is  possible  to  consult  the  Department 
of  State.12 

• 

§  562.  Rules  of  Department  of  State.— The  Department  of 
State  of  the  United  States  has  published  rules  for  the  prosecution 
of  claims  by  citizens  of  the  United  States  against  foreign  govern- 
ments, not  founded  on  contract,  in  the  prosecution  of  which  they 

i  may  wish  the  aid  of  the  Department  of  State.  These  rules,  it  is 
stated,  are  substantially  those  which  have  been  adopted  by  com- 

:  missions  organized  under  conventions  between  the  United  States 

i  and  foreign  governments  for  the  adjustment  of  claims.  The  De- 
partment advises  that,  in  preparing  and  forwarding  their  papers, 
citizens  conform  as  nearly  as  possible  to  these  rules,  which  are  as 
follows : 

"Each  claimant  should  file  a  memorial,  in  triplicate,  properly 
dated,  setting  forth  minutely  and  particularly  the  facts  and  cir- 
cumstances from  which  the  right  to  prefer  such  claim  is  derived 
by  the  claimant.  This  memorial  should  be  verified  by  his  or  her 
oath  or  affirmation. 

"All  subsequent  communications  to  the  Department  in  the  na- 
ture of  statements  of  fact,  arguments,  or  briefs  should  likewise 

j  be  furnished  in  triplicate. 

' '  The  memorial  and  all  the  accompanying  papers  should  have  a 

i  margin  of  at  least  one  inch  on  each  side  of  the  page,  so  as  to  ad- 
mit of  their  being  bound  in  volumes  for  preservation  and  con- 

^venient  reference;  and  the  pages  should  succeed  each  other,  like 
those  of  a  book,  and  be  readable  without  inverting  them. 

"When  any  of  the  papers  mentioned  in  rule  11  are  known  to 

i  have  been  already  furnished  to  the  Department  by  other  claim- 
ants, it  will  be  unnecessary  to  repeat  them  in  a  subsequent  mem- 
orial. A  particular  description,  with  a  reference  to  the  date  un- 

jider  which  they  were  previously  transmitted,  is  sufficient. 

"Nor  is  it  necessary,  when  it  is  alleged  that  several  vessels 
have  been  captured  by  the  same  cruiser,  to  repeat  in  each  mem- 
orial the  circumstances  in  respect  to  the  equipment,  arming,  man- 

t'ning,  flag,  etc.,  of  such  cruiser,  which  are  relied  upon  as  the  evi- 

12  Instructions    to    Diplomatic    Of  Seers    (1897),  sec.   174,  p.  68. 


CLAIMS    AGAINST    GOVERNMENTS.  54S 

dence  of  the  responsibility  of  a  foreign  government  for  its  alleged 
tortious  acts.  A  simple  reference  to  an  adoption  of  one  memorial 
in  which  such  facts  have  been  fully  stated,  will  suffice. 

"It  is  proper  that  the  interposition  of  this  government  with  the 
foreign  government  Against  which  the  claim  is  presented  should 
be  requested  in  express  terms,  to  avoid  a  possible  objection  to  the 
jurisdiction  of  a  future  commission  on  the  ground  of  the  gen- 
erality of  the  claim. 

' '  Claims  of  citizens  against  the  government  of  the  United  States 
are  not  generally  under  the  cognizance  of  this  department.  They 
are  usually  subjects  for  the  consideration  of  some  other  depart- 
ment or  of  the  Court  of  Claims,  or  for  an  appeal  to  Congress. 

' '  In  every  memorial  should  be  set  forth — 

"1.  The  amount  of  the  claim;  the  time  when  and  place  where 
it  arose,  the  kind  or  kinds  and  amount  of  property  lost  or  in- 
jured ;  the  facts  and  circumstances  attending  the  loss  and  injury 
out  of  which  the  claim  arises ;  the  principles  and  causes  which 
lie  at  the  foundation  of  the  case. 

"2.  For  and  in  behalf  of  whom  the  claim  is  preferred,  giving 
Christian  name  and  surname  in  full. 

' '  3.  Whether  the  claimant  is  now  a  citizen  of  the  United  States, 
and,  if  so,  whether  he  is  a  native  or  naturalized  citizen  and  where 
is  now  his  domicile;  and,  if  he  claims  in  his  own  right,  then 
whether  he  was  a  citizen  when  the  claim  had  its  origin  and  where 
was  then  his  domicile;  and,  if  he  claims  in  the  right  of  another, 
then  whether  such  other  was  a  citizen  when  the  claim  had  its 
origin  and  where  was  then  and  where  is  now  his  domicile;  and 
if,  in  either  case,  the  domicile  of  the  claimant  at  the  time  the 
claim  had  its  origin  was  in  any  foreign  country,  then  whether 
such  claimant  was  then  a  subject  of  the  government  of  such  coun- 
try or  had  taken  any  oath  of  allegiance  thereto. 

' '  4.  Whether  the  entire  amount  of  the  claim  does  now,  and  did 
at  the  time  when  it  had  its  origin,  belong  solely  and  absolutely  to 
the  claimant;  and,  if  any  other  person  is  or  has  been  interested 
therein,  or  in  any  part  thereof,  then  who  is  such  other  person 
and  what  is  or  was  the  nature  and  extent  of  his  interest;  and 
how,  when,  and  by  what  means  and  for  what  considerations  the 
transfer  of  rights  or  interests,  if  any  such  were  made,  took  place 
between  the  parties. 


549  RULES    OF    DEPARTMENT    OF    STATE.  [§    562 

"5.  Whether  the  claimant,  or  any  other  who  may  at  any  time 
have  been  entitled  to  the  amount  claimed,  or  any  part  thereof, 
has  ever  received  any,  and,  if  any,  what,  sum  of  money  or  other 
equivalent  or  indemnification  for  the  whole  or  any  part  of  the 
loss  or  injury  upon  which  the  claim  was  founded;  and,  if  so, 
when  and  from  whom  the  same  was  received. 

"6.  All  testimony  should  be  in  writing,  and  upon  oath  or  af- 
firmation, duly  administered  according  to  the  laws  of  the  place 
where  the  same  is  taken,  by  a  magistrate  or  other  person  compe- 
tent by  such  laws  to  take  depositions,  having  no  interest  in  the 
claim  to  which  the  testimony  relates  and  not  being  the  agent  or 
attorney  of  any  person  having  such  interest,  and  it  must  be 
certified  by  him  that  such  is  the  case.  The  credibility  of  the  af- 
fiant or  deponent,  if  known  to  such  magistrate  or  other  person 
authorized  to  take  such  testimony,  should  be  certified  by  him ;  and, 
if  not  known,  should  be  certified  on  the  same  paper  upon  oath  by 
some  other  person  known  to  such  magistrate  having  no  interest 
in  such  claim  .and  not  being  the  agent  or  attorney  of  any  person 
having  such  interest,  whose  credibility  must  be  certified  lay  such 
magistrate.  The  deposition  should  be  reduced  to  writing  by  the 
person  taking  the  same,  or  by  some  person  in  his  presence  having 
no  interest  and  not  being  agent  or  attorney  of  any  person  hav- 
ing an  interest  in  the  claim,  and  should  be  carefully  read  to  the 
deponent  by  the  magistrate  before  being  signed  by  him,  and  this 
should  be  certified. 

"7.  Depositions  in  any  city,  port,  or  place  without  the  limits 
of  the  United  States  may  be  taken  before  any  consul  or  other  pub- 
lic civil  officer  of  the  United  States  resident  in  such  city,  port,  or 
place,  having  no  interest,  and  not  being  agent  or  attorney  of  any 
person  having  an  interest,  in  the  claim  to  which  the  testimony  so 
taken  relates.  In  all  other  cases,  whether  in  the  United  States 
or  in  any  foreign  place,  the  right  of  the  person  taking  the  deposi- 
tion to  administer  oaths  by  the  laws  of  the  place  must  be  certified. 

"8.  Every  affiant  or  deponent  should  state  in  his  deposition  nis 
age,  place  of  birth,  residence,  and  occupation,  and  where  was  his 
residence  and  what  was  his  occupation  at  the  time  the  events 
took  place  in  regard  to  which  he  deposes;  and  must  also  state  if 
he  have  any,  and,  if  any,  what,  interest  in  the  claim  to  support 
which  his  testimony  is  taken;  and,  if  he  have  any  contingent  in- 
terest in  the  same,  to  what  extent,  and  upon  the  happening  of 


§    562]  CLAIMS   AGAINST    GOVERNMENTS.  550 

what  event,  he  will  be  entitled  to  receive  any  part  of  the  sum 
which  may  be  awarded.  He  should  also  state  whether  he  be  the 
agent  or  attorney  of  the  claimant  or  of  any  person  having  an  in- 
terest in  the  claim. 

"9.  Original  papers  exhibited  in  proof  should  be  verified  as 
originals  by  the  oath  of  a  witness,  whose  credibility  must  be  cer- 
tified as  required  in  the  sixth  of  these  rules;  but,  when  the  fact 
is  within  the  exclusive  knowledge  of  the  claimant,  it  may  be 
verified  by  his  own  oath  or  affirmation.  Papers  in  the  handwrit- 
ing of  anyone  who  is  deceased  or  whose  residence  is  unknown  to 
the  claimant  may  be  verified  by  proof  of  such  handwriting  and  of 
the  death  of  the  party  or  his  removal  to  places  unknown. 

"10.  All  testimony  taken  in  any  foreign  language  and  all  pa- 
pers and  documents  in  any  foreign  language  which  may  be  ex- 
hibited in  proof  should  be  accompanied  by  a  translation  of  the 
same  into  the  English  language. 

"11.  When  the  claim  arises  from  the  seizure  or  loss  of  any  ship 
or  vessel,  or  the  cargo  of  any  ship  or  vessel  should  be  produced, 
together  with  the  original  clearance,  manifests,  and  all  other 
papers  and  documents  required  by  the  laws  of  the  United  States 
which  she  possessed  on  her  last  voyage  from  the  United  States, 
when  the  same  are  in  the  possession  of  the  claimant  or  can  be  ob- 
tained by  him,  and,  when  not,  certified  copies  of  the  same  should 
be  produced,  together  with  his  oath  or  affirmation  that  the  orig- 
inals are  not  in  his  possession  and  cannot  be  obtained  by  him. 

"12.  In  all  cases  where  property  of  any  description  for  the 
seizure  or  loss  of  which  a  claim  has  been  presented  was  insured 
at  the  time  of  such  seizure  or  loss,  the  original  policy  of  insur- 
ance, or  a  certified  copy  thereof,  should  be  produced. 

"13.  If  the  claimant  be  a  naturalized  citizen  of  the  United 
States,  a  copy  of  the  record  of  his  naturalization,  duly  certified, 
should  be  produced. 

"14.  Documentary  proof  should  be  authenticated  by  proper 
certificates  or  by  the  oath  of  a  witness. 

"15.  If  the  claimant  shall  have  employed  counsel,  the  name  of 
such  counsel  should,  with  his  address,  be  signed  to  the  memorial 
and  entered  upon  the  record,  so  that  all  necessary  notices  may  be 
addressed  to  such  counsel  or  agent  respecting  the  case."  13 

13  Circular  Relating  to  Claims  Against  Foreign  Governments,  Department  of 
State,  March  5,  1906. 


551  DISCRETION    OF    GOVERNMENT.  [§§    563,    564 

§  563.  Discretion  of  government. — If  the  damages  sought  are 
speculative  and  exorbitant  in  amount,  the  State  Department  will 
not  present  a  claim  to  a  foreign  government,  although  the  claim 
is  based  on  a  wrong  actually  committed.14  The  government  will 
exercise  a  wise  and  judicious  discretion,  when  an  application  is 
made  to  it  to  present  the  claim  of  a  citizen  against  a  foreign 
power.15  When  the  claim  is  passed  through  diplomatic  channels, 
it  is  a  national  claim  as  against  the  foreign  government,  although 
between  the  United  States  and  its  citizens  the  claim  may  be  pri- 
vate. "Over  such  claims  the  prosecuting  government  has  full 
control.  It  may,  as  a  matter  of  pure  right,  refuse  to  present  them 
at  all;  it  may  surrender  them  or  compromise  them  without  con- 
sulting the  claimants The  rights  of  the  citizens  for  dip- 
lomatic redress  are  as  against  his  own  not  the  foreign,  govern- 
ment."16 As  stated  by  Mr.  Marcy,  "the  government  of  the 
United  States  does  not  feel  called  upon  to  interpose  in  behalf  of 
every  just  claim  held  by  its  citizens  against  foreign  nations. 
When  individuals  see  proper  to  intrust  their  property  to  the  safe- 
keeping of  another  government  it  is  to  be  supposed  that  they 
have  satisfied  themselves  of  the  ability  and  intention  of  that  gov- 
ernment to  restore  that  which  may  have  been  confided  to  it,  and 
the  deposit  is  accordingly  made  upon  personal  risk. ' ' 17 

§  564.  Policy  of  Great  Britain. — In  a  circular  letter  addressed 
in  1848  to  the  representatives  of  Great  Britain  in  foreign  states. 
Lord  Palmerston  stated  that  as  some  misconception  appeared  to 
exist  as  to  the  right  of  the  government  to  interfere  in  support  of 
the  unsatisfied  claims  of  British  subjects  holding  public  bonds 
and  securities  of  foreign  states,  he  declared  that  it  was  entirely  a 
matter  of  discretion,  and  not  one  of  international  right.  As  a 
matter  of  international  right  alone,  he  asserted  that  the  govern- 
ment of  one  country  possesses  the  undoubted  right  to  take  up  as 
a  matter  of  diplomatic  negotiation  any  well-founded  complaint 

14  Mr.  Marcy,  Secretary  of  State,  16  Mr.  Frelinghuysen,  Secretary  of 
to  Mr.  Munro,  June  10,  1856,  45  MS.  State,    to    Messrs.    Mullan    &    King, 
Dom.    Let.    45.  Feb.    11,    1884. 

15  United  States  v.  La  Abra  Silver  1T  Mr.  Marcy,  Secretary  of  State, 
Min.  (Jo.,  29  Ct.  of  Cl.  432;  Black,  9  to    Mr.    Egbert,    Nov.    15,    1854,    43 
Op.  Atty.  Gen.  338.  MS.    Dom.  Let.  219. 


§    565]  CLAIMS  AGAINST  GOVERNMENTS.  552 

preferred  by  any  of  its  citizens  against  the  government  of  another 
country,  but  he  added : 

"It  has  hitherto  been  thought  by  the  successive  governments  of 
Great  Britain  undesirable  that  British  subjects  should  invest  their 
capital  in  loans  to  foreign  governments  instead  of  employing  it 
in  profitable  undertakings  at  home ;  and  with  a  view  to  dis- 
courage hazardous  loans  to  foreign  governments,  who  may  be 
either  unable  or  unwilling  to  pay  the  stipulated  interest  there- 
upon, the  British  government  has  hitherto  thought  it  the  best  pol- 
icy to  abstain  from  taking  up  as  international  questions  the  com- 
plaints made  by  British  subjects  against  foreign  governments 
which  have  failed  to  make  good  their  engagements  in  regard  to 
such  pecuniary  transactions.  For  the  British  government  has 
considered  that  the  losses  of  imprudent  men,  who  have  placed 
mistaken  confidence  in  the  good  faith  of  foreign  governments, 
would  prove  a  salutary  warning  to  others,  and  would  prevent  any 
other  foreign  loans  from  being  raised  in  Great  Britain,  except  by 
governments  of  known  good  faith  and  ascertained  solvency.  But 
nevertheless  it  might  happen  that  the  loss  occasioned  to  British 
subjects  by  the  nonpayment  of  interest  on  loans  made  by  them  to 
foreign  governments  might  become  so  great  that  it  would  be  too 
high  a  price  for  the  nation  to  pay  for  such  a  warning  as  to  the 
future,  and  in  such  a  state  of  things  it  might  become  the  duty  of 
the  British  government  to  make  these  matters  the  subject  of 
diplomatic  negotiation."18 

§  565.  Objections  to  presentation  of  claims. — Although  a  citi- 
zen may  not  lose  his  citizenship,  he  may  conduct  himself  in  such  a 
manner  as  to  forfeit  to  a  certain  degree  the  right  to  claim  na- 
tional protection.19  It  was  sought,  by  an  inquiry  made  by  the 
consul  of  the  United  States  at  Alexandria,  Egypt,  to  ascertain 
whether  citizens  of  the  United  States,  who,  although  graduates 
of  West  Point  or  Annapolis,  had  been  engaged  on  the  side  of  the 
Confederacy  in  the  Civil  War,  and  who  were  in. the  service  of  the 
Khedive  of  Egypt,  were  entitled  to  the  protection  of  th*  consulate. 
The  response  returned  by  the  Department  of  State  was:  "It  is 
conceived  to  be  the  duty  of  this  government  impartially  to  pro- 
tect all  citizens  abroad  in  conformity  with  treaties  and  the  pub- 

18  Hall's  Int.  Law,  294,  295.  1!)  3  Moore  Int.  Arbitrations,  2729. 


FRAUD  IN   CLAIM.  [§    566 

lie  law.  No  exception  can  properly  be  made  in  regard  to  persons 
belonging  to  the  classes  to  which  you  refer,  unless  that  exception 
shall  be  required  by  some  constitutional  provision  or  statutory  en- 
actment. It  is  believed  there  is  none  applicable  in  this  instance." 
If,  however,  these  persons  had,  by  their  express  contract  with  the 
Khedive,  renounced  the  right  of  appeal  to  their  ow,n  government, 
no  ground  would  then  exist  for  interference  in  their  behalf.20 
It  was  announced  by  the  attorney  general  of  the  United  States, 
that  when  jurisdiction  of  any  particular  case  has  been  lawfully 
assumed  by  the  government  a  co-ordinate  department  should  de- 
cline to  interfere,  and  hence,  the  political  department  of  the  gov- 
ernment will  postpone  the  consideration  of  questions  relating  to 
reclamation  and  indemnity,  where  jurisdiction  has  been  acquired 
by  the  courts  in  cases  of  maritime  capture,  until  the  judiciary 
has  finally  fulfilled  its  functions.21 

§  566.  Fraud  in  claim. — Fraud  will  justify  or  compel  the  gov- 
ernment to  relinquish  or  refuse  to  present  a  claim  in  behalf  of  its 
citizens.  Mr.  Seward  says  that  it  has  become  an  established 
usage,  "having  the  authority  of  a  principle,  in  the  correspondence 
between  enlightened  governments,  in  relation  to  the  claims  of  citi- 
zens or  subjects,  that  any  deception  practiced  by  a  claimant  upon 
his  own  government  in  regard  to  a  controversy  with  a  foreign 
government  for  the  purpose  of  enhancing  his  claim,  or  influenc- 
ing the  proceedings  of  his  government,  forfeits  all  title  of  the 
party  attempting  such  deception  to  the  protection  and  aid  of  his 
government  in  the  controversy  in  question,  because  an  honorable 
government  cannot  consent  to  complicate  itself  in  a  matter  in 
which  it  has  itself  been  made  or  attempted  to  be  made  the  victim 
of  a  fraud,  for  the  benefit  of  the  dishonest  party. "  22  So  if  an 
act  on  which  a  claim  is  based  is  against  public  policy,  the  govern- 
ment will  refuse  its  assistance.23  A  citizen  of  the  United  States 
requested  the  Department  of  State  to  support  his  claim  for  ser 
vices  which  he  claimed  he  had  rendered  under  a  contract  with 

20  Mr.  Fish,  Secretary  of  State,  to       ter,    May    30,    1862,    MS,     Notes    to 
Mr.  Butler,  Oct.  5,  1871,  MS,    Inst.       Great  Britain,  IX,  187. 

Barbary    Powers,    XV,    62.  -•  Mr.  Seward,  Secretary  of  State 

21  Bates,  11  Op.  Atty.  Gen.  117.  to    Mr.   Whitney,   July   24,    1868,   7f 

22  To   Lord   Lyons,   British   Minis-       MS.  Dom.  Let.   119. 


§    567 j  CLAIMS  AGAINST   GOVERNMENTS.  554 

the  President  of  Venezuela  to  obtain  a  revision  of  the  awards 
made  by  a  commission  under  a  treaty  between  that  country  and 
the  United  States.  The  Department,  however,  said  in  reply; 
"The  government  of  the  United  States  cannot  recognize  a  con- 
tract alleged  to  have  been  entered  into  by  a  citizen  of  the  United 
States  with  the  executive  or  agent  of  another  government,  for  the 
purpose  of  securing  the  setting  aside  of  a  treaty  between  this  and 
such  other  government.  The  services  which  you  claim  to  have, 
performed  related  chiefly  to  the  procurement  of  action  on  the  part 
of  Congress,  these  services  being  performed  for  the  government 
of  Venezuela.  Under  the  constitution  of  the  United  States,  the 
only  organ  of  communication  between  this  and  foreign  govern- 
ments is  the  President.  This  Department  cannot  look  with  any- 
thing but  disapprobation  upon  a  foreign  government  seeking  to 
approach  a  branch  of  the  government  of  the  United  States  through 
another  channel.  It  may  be  stated  as  a  fact,  although  it  is  not 
material,  that  at  the  very  time  at  which  you  allege  that  your  em- 
ployment began  this  Department  was  demanding  of  the  govern- 
ment of  Venezuela  the  execution  of  the  treaty  of  1866.  "24  For 
these  reasons  the  United  States  refused  to  interest  itself  in  th<> 
presentation  of  this  claim. 

§  567.  Citizenship. — The  government  of  the  United  States  in 
terferes  only  in  behalf  of  its  own  citizens.25  The  making  of  a 
declaration  of  intention  to  become  a  citizen  will  not  make  the 
declarant  a  citizen.26  Where  injuries  had  been  committed  while 
a  person  was  a  German  subject,  and  before  he  became  a  citizen 
of  the  United  States,  the  Department  of  State  said :  * '  If  denial  of 
justice  subsequent  to  the  acquisition  of  citizenship  takes  the  case 
out  of  the  rule  that  a  claim  maturing  before  citizenship  cannot 
be  the  subject  of  diplomatic  intervention,  then  the  rule  would  it- 
self be  abrogated,  since  there  is  no  litigated  case  in  which  such 
denial  could  not  be  set  up."27  In  1819  Lord  Castlereagh  said 

24  Mr.  Blaine,  Secretary  of  State,  26  Mr.  Frelinghuysen,  Secretary  of 
to  Mr.  Matchett,  March  19,  1891,  181  State,  to  Mr.  Alfonso,  Nov.  13,  1884, 
MS.     Dom.    Let.    273.  153   MS.     Dom.   Let.    194. 

25  Mr.  Forsyth,  Secretary  of  State,  27  Mr.  Porter,  Acting  Secretary  of 
to  Mr.  Champly,  April  15,  1837,  29  State,  to  Messrs.  Kennedy  &  Shella- 
MS.    Dom.   Let.   1;   The   Vanderput,  berger,  Jan.  4,  1887,  S.  Doc.  287,  57 
37    Ct.    of     01.     396;    Bodemiiller   v.  Cong.  1st.  Sess. 

United  States,  39  Fed.  437 


555  CITIZENSHIP.  [§  567 

that  two  British  subjects  had  been  considered  by  the  Cabinet  as 
having  forfeited  their  rights  to  protection  from  their  government, 
because  "they  had  identified  themselves,  in  part  at  least,  with 
the  Indians,  by  going  amongst  them  with  other  purposes  than 
those  of  innocent  trade;  by  sharing  in  their  sympathies  too 
actively  when  they  were  upon  the  eve  of  hostilities  with  the  United 
States;  by  feeding  their  complaints;  by  imparting  to  them  coun- 
sel; by  heightening  their  resentments,  and  thus  at  all  events  in- 
creasing the  predispositions  which  they  found  existing  to  the 
war,  if  they  did  not  originally  provoke  it."28  "A  vessel  of  the 
United  States  voluntarily  entering  into  the  service  of  a  foreign 
power  in  aid  of  military  or  naval  operations  must  be  regarded  as 
relying  exclusively  upon  the  protection  of  that  power,  and  as 
renouncing,  while  such  employment  continues,  any  claim  to  the 
protection  of  the  United  States. ' ' 29 

The  Portuguese  government  seized  a  railway  constructed  in 
Portugal,  by  Edward  MacMurdo,  a  citizen  of  the  United  States, 
operating  through  a  Portuguese  corporation,  and  against  this  ac- 
tion protests  were  made  both  by  the  United  States  and  Great 
Britain,  to  which  the  government  of  Portugal  replied  that  it  could 
only  deal  with  the  Portuguese  company,  through  which  all  rights 
of  the  American  and  British  stockholders  should  be  maintained. 
Lord  Salisbury,  in  his  instructions  to  the  British  minister  at 
Lisbon,  said  that  the  British  investors  had  suffered  "a  grievous 
wrong  in  consequence  of  the  forcible  confiscation  by  the  Portu- 
guese government  of  the  line  and  the  materials  belonging  to  the 
British  company,  and  of  the  securities  on  which  the  debentures 
of  the  British  company  had  been  advanced;  and  that  for  that 
wrong  Her  Majesty's  government  are  bound  to  ask  for  compensa- 
tion from  the  government  of  Portugal. ' '  30  Mr.  Blaine,  in  his  let- 
ter to  the  American  Minister  at  Lisbon,  declared  that  upon  a 
full  consideration  of  the  circumstances,  "this  government  is 
forced  to  the  conclusion,  that  the  violent  seizure  of  the  railway 
by  the  Portuguese  government  was  an  act  of  confiscation,  which 
renders  it  the  duty  of  the  government  of  the  United  States  to  ask 
that  compensation  should  be  made  to  such  citizens  of  this  coun- 

28  Mr.  Bush,  Minister  at  London,       Mr.   Murray,   Dec.    7,   1869,   82   MS. 
to   Mr.   Adams,   Secretary  of   State,       Dom.   Let.   453. 

MS.    Desp.  from  England.  30  Parl.  Pop.  Cd.  5903,  p.  58. 

29  Mr.  Fish,  Secretary  of  State,  to 


§    568]  CLAIMS    AGAINST    GOVERNMENTS.  556 

try  as  may  be  involved.  With  respect  to  the  case  of  Colonel 
MacMurdo,  who  is  now  represented  by  his  widow,  Katherine  A. 
MacMurdo,  his  sole  executrix  and  legatee,  it  is  to  be  observed 
that  by  the  terms  of  the  concession  the  company  which  he  was 
required  to  form  was  to  include  himself,  and  that  his  personal 
liability  was  not  merged  in  that  of  the  company.  But  in  any  case, 
the  Portuguese  company,  being  without  remedy,  and  having  now 
practically  ceased  to  exist,  the  only  recourse  of  those  whose  prop- 
erty has  been  confiscated  is  the  intervention  of  the  respective  gov- 
ernments. ' ' 

A  protocol  was  signed  at  Berne  July  13,  1891,  between  the 
United  States,  Great  Britain  and  Portugal,  by  which  they  agreed 
to  submit  to  a  tribunal  of  arbitration  the  question  of  "the  amount 
of  the  compensation  due  by  the  Portuguese  government  to  the 
claimants  of  the  other  two  countries,  in  consequence  of  the  rescis- 
sion of  the  concession  of  the  Lourenco  Marques  railroad  and  the 
taking  possession  of  that  railroad  by  the  Portuguese  government." 
This  tribunal  made  an  award  of  damages,  which  the  Portuguese 
government  paid.31 

§  568.  Policy  of  the  United  States.— It  is  the  policy  of  the 
United  States  to  refuse  to  present  a  claim  to  a  foreign  govern- 
ment, founded  on  transactions  in  which  the  neutrality  laws  of 
the  United  States  were  violated.32  The  Department  of  State  will 
not  entertain  a  claim  against  the  United  States,  which  the  claim- 
ant has  elected  to  present  to  Congress,  as  long  as  the  claim  is  be- 
fore Congress.33  A  widow,  a  citizen  of  the  United  States,  suc- 
ceeded as  an  heir  to  the  claim  of  her  husband,  an  alien,  against  a 
foreign  government,  and  when  she  sought,  in  her  character  as  an 
American  citizen,  the  good  offices  of  the  government,  the  De- 
partment of  State  granted  her  request.  In  doing  so,  it  said  that 
"while,  in  the  opinion  of  the  Department,  a  citizen  of  the  United 
States  is  not  entitled  to  invoke  the  assistance  of  this  government 
in  respect  of  a  claim  against  another  government  acquired  from 
a  foreigner  by  marriage  and  assignment  (by  partnership  arrange- 

31  2    Moore's    International    Arbi-  3!  Mr.  Fish,  Secretary  of  State,  to 

tration,  1865-1889.  Mr.  Schlozer,  German  Minister,  Sept. 

'••2  Mr.  Bayard,  Secretary  of  State,  14,  1874,  MS.  Notes  to  German  Leg. 

to  Messrs.  Morris  and  Fillette,  July  IX,  44. 
28,  1888,  169  MS.  Dom.  Let.  263. 


557      NATURALIZATION    HAS    NO    RETROACTIVE    EFFECT.       [§§    569,    570 

ment  or  otherwise),  yet  it  is  believed  that  where  such  claim  comes 
to  the  wife  by  succession  upon  the  death  of  her  husband,  as  in 
this  case,  the  offices  of  this  government  should  be  extended  to 

her."34 

\ 

§  569.  Naturalization  has  no  retroactive  effect. — Naturaliza- 
tion cannot  be  allowed  to. have  a  retroactive  effect,  so  as  to  in- 
duce the  government  to  intercede  in  a  claimant's  behalf.35  The 
government  does  not  undertake,  by  adopting;  an  alien  as  a  citi- 
zen, the  patronage  of  a  claim  which  he  may  have  against  another 
government.  "To  admit  that  he  can  charge  it  with  this  bur- 
den." said  Mr.  Fish,  Secretary  of  State,  "would  allow  him  to  call 
upon  a  dozen  governments  in  succession,  to  each  of  'which  he 
might  transfer  his  allegiance,  to  urge  his  claim.  Under  such  a 
rule  the  government  supposed  to  be  indebted  could  never  know 
when  the  discussion  of  a  claim  would  cease.  All  governments 
are.  therefore,  interested  in  resisting  such  pretensions."36  On 
another  occasion  Mr.  Fish  stated  that  "it  would  be  a  monstrous 
doctrine,  which  this  government  would  not  tolerate  for  a  moment, 
that  a  citizen  of  the  United  States,  who  might  deem  himself  in- 
jured by  the  authorities  of  the  United  States  or  of  any  state, 
could,  by  transferring  his  allegiance  to  another  power,  confer 
upon  these  powers  the  right  to  inquire  into  the  legality  of  the 
proceedings  by  which  he  may  have  been  injured  while  a  citi- 


§  570.  Assignability  of  right.  —  The  United  States  will  not 
"recognize  an  assignment  of  a  claim  against  a  foreign  country 
made  by  a  citizen  or  subject  of  that  country  to  a  citizen  of  this 
for  the  purpose  of  invoking  diplomatic  aid  in  the  recovery  there- 
of. Still  less  will  it  undertake  to  aid  in  the  recovery  of  claims 
against  subjects  of  foreign  countries  which  originally  accrued  in 
favor  of  their  fellow-subjects  and  have  been  assigned  by  the  lat- 

54  Mr.  Hill,  Assistant  Secretary  of       to  Mr-  Ujhazi,  Aug.  26,  1856,  45  MS. 

State,   to   Messrs.   Coudert  Brothers,       ^l^'  46*- 

38  89  MS.    Dom.  Let.  348.  May  16, 
June    9,    1900,    245    MS.    Dom.    Let. 


484-  8T  To  Mr.  Bachiller,  April  8,  1874, 

*  Mr.  Marcy,  Secretary  of  State,       MS.   Dom.  Let.  43. 


§    571]  CLAIMS  AGAINST   GOVERNMENTS.  558 

ter  to  American  citizens."38  Mr.  Evarts,  while  Secretary  of 
State,  forcibly  expressed  the  position  of  the  government  by  de- 
claring: "An  assignment  of  a  claim  by  a  foreigner,  or  another 
government  to  a  citizen  of  the  United  States,  even  if  such  claim 
be  founded  in*  tort,  is  not  conceived  to  impose  on  this  government 
any  obligation  to  interfere  in  behalf  of  such  citizen,  in  respect  of 
the  government  against  which  the  complaint  is  made.  This  rule, 
however,  is  especially  applicable  in  matters  of  contract  between 
a  foreigner  and  another  government,  or  where  a  citizen  of  the 
United  States  becomes  the  assignee  of  the  contract.  '  '  39 

§  571.  Assignment  of  award.  —  Where  an  award  has  been  made 
by  the  Commissioners  of  Alabama  Claims  under  the  treaty  of  1871 
between  the  United  States  and  Great  Britain,  it  constitutes  a  part 
of  the  estate  of  the  person  in  whose  favor  it  is  made,  and  will  pass 
to  his  assignee  in  bankruptcy.  Such  an  assignee  is  authorized  to 
take  vested  rights  in  rem  and  in  re  possibilities  coupled  with  an  in- 
terest in  claims  arising  out  of  property.40  Mr.  Justice  Lamar,  in 
speaking  of  these  claims,  said:  "Was  the  claim  in  this  case 
'property'  in  any  sense  of  the  term?  We  think  it  was.  Who 
can  doubt  but  that  the  right  to  prosecute  this  claim  before  the 
Court  of  Commissioners  of  Alabama  Claims  would  have  survived 
to  their  legal  representatives  had  the  original  claimants  been 
dead  at  the  passage  of  the  act  of  1882.  If  so,  the  money  re- 
covered would  have  been  distributable  as  assets  of  the  estate. 
While,  as  already  stated,  there  were  no  means  of  compelling  Con- 
gress to  distribute  the  fund  received  in  virtue  of  the  Geneva 
award,  and  while  the  claimant  was  remediless  with  respect  to  any 
proceedings  by  which  he  might  be  able  to  retrench  his  losses, 
nevertheless  there  was  at  all  times  a  moral  obligation  on  the  part 
of  the  government  to  do  justice  to  those  who  had  suffered  in 
property.  As  we  have  shown  from  the  history  of  the  proceed- 
ings leading  up  to  the  organization  of  the  tribunal  at  Geneva, 
these  war  premiums  of  insurance  were  recognized  by  the  govern- 
ment of  the  United  States  as  valid  claims,  for  which  satisfaction 
should  be  guaranteed.  There  was  thus  at  all  times  a  possibility 

38  Mr.  Gresham,  Secretary  of  State,          "  To  Mr-  Hodgskin,  Oct.  25,  1877, 

•»*-      ™  -r,       1,1    iir-    •  /  12°   MS.   Dorn.  Let.   238. 

to   Mr.  McDonald,  Minister  to  Per- 


550. 


559  CLAIM    OF    BANKRUPT.  [§§    572,    573 

that  the  government  would  see  that  they  were  paid.  There  was 
a  possibility  of  their  being  at  some  time  valuable.  They  were 
rights  growing  out  of  property — rights,  it  is  true,  that  were  not 
enforceable  until  after  the  passage  of  the  act  of  Congress,  for  the 
distribution  of  the  fund.  But  the  act  of  Congress  did  not  create 
the  rights.  They  had  existed  at  all  times  since  the  losses  oc- 
curred. They  were  created  by  reason  of  losses  having  been  suf- 
fered. All  that  the  act  of  Congress  did  was  to  provide  a  remedy 
for  the  enforcement  of  that  right."41 

§  572.  Claim  of  bankrupt. — A  claim  of  a  bankrupt  against  a 
foreign  government  will  be  transferred  to  his  assignee  in  bank- 
ruptcy, but  if  the  claim  is  vaguely  described  in  the  schedule  of 
assets,  and  denominated  worthless,  it  will  not,  on  a  general  sale  of 
his  accounts,  notes  and  judgments,  pass  to  a  purchaser,  who  acts 
for  the  benefit  of  the  bankrupt  with  money  supplied  by  the  lat- 
ter, where  merely  a  nominal  sum  was  paid,  and  the  claim  had  a 
large  value.42 

§  573.  Resort  to  local  remedies. — It  is  a  rule  universally  ad- 
mitted that  the  regular  course  of  justice  will  not  be  interfered 
with  until  the  foreigner  claiming  to  have  been  injured  shall  have 
proceeded  to  the  court  of  last  resort  having  jurisdiction ; 43  and 
unless  the  injured  party  thus  prosecutes  his  case,  the  govern- 
ment of  the  United  States  is  not  obligated  to  make  compensa- 
tion.44 In  a  case  where  one  state  of  the  Union  sought  to  recover 
from  another  state  on  bonds  and  coupons,  in  a  suit  brought  by 
the  state  as  assignee,  Mr.  Chief  Justice  Waite  quoted  with  ap- 
proval the  language  of  Sir  Robert  Phillmore:  "As  a  general 
rule,  the  proposition  of  Martens  seems  to  be  correct,  that  the 
foreigner  can  only  claim  to  be  put  on  the  same  footing  as  the 
native  creditor  of  the  state."45  The  chief  justice  himself  said: 
"There  is  no  principle  of  international  law  which  makes  it  the 
duty  of  one  nation  to  assume  the  collection  of  the  claims  against 

41  Williams    v.    Heard,    140   U.    S.       ed.  203;  Clark  v.  Clark,  17  How.  (U. 
529,  11  Sup.  Ct.  Eep.  885,  35  L.  ed.       S.)  315,  15  L.  ed/77. 

:550.  *•  Randolph,  1  Op.  Atty.  Gen.  25. 

42  Phelps   v.   McDonald,   99   U.    S.  44  Lincoln,   5   Op.   Atty.   Gen.  692. 
298,  25  L.  ed.  473.     See,  also,  Lewis  a  Citing   2   Phillmore  'a  Int.  Law, 
v.  Bell,  17  How.   (U.  S.)   616,  15  L.  p.   12. 


§    574]  CLAIMS  AGAINST  GOVERNMENTS.  560 

another  nation,  if  the  citizens  themselves  have  ample  means  of 
redress  without  the  intervention  of  their  government. ' '  46  Where 
a  tort  had  been  committed  on  an  American  citizen  by  a  mob  in 
Cuba,  Mr.  McLane  stated  that  while  a  government  was  obligated 
to  protect  its  citizens  and  to  see  that  where  justice  is  denied  to 
them  by  a  foreign  nation,  that  their  injuries  are  redressed,  "yet 
this  obligation  always  presupposes  a  resort,  in  the  first  instance, 
to  the  ordinary  means  of  defense  or  reparation  which  are  af- 
forded by  the  laws  of  the  country  in  which  their  rights  are  in- 
fringed, to  w^hich  laws  they  have  voluntarily  subjected  them- 
selves by  entering  within  the  sphere  of  their  operation,  and  by 
which  they  must  consent  to  abide.  It  would  be  an  unreasonable 
and  oppressive  burden  upon  the  intercourse  between  nations,  that 
they  should  be  compelled  to  investigate  and  determine,  in  the 
first  instance,  every  personal  offense  committed  by  the  citizens 
of  the  one  against  the  other. ' '  47 

§  574.  Courts  of  South  American  Republics. — Complaints 
have  frequently  been  made  that  the  courts  of  the  South  Ameri- 
can republics  were  inefficient,  and  that  justice  could  not  be  se- 
cured in  them  at  all  or  only  after  great  delay.  But  Mr.  Seward 
said:  "We  must,  however,  continue  to  repose  confidence  in  their 
independence  and  integrity,  or  we  must  take  the  broad  ground 
that  those  states  are  like  those  of  oriental  semi-civilized  coun- 
tries— outside  the  pale  within  which  the  law  of  nations,  as  gen- 
erally accepted  by  Christendom,  is  understood  to  govern.  The 
people  who  go  to  these  regions  and  encounter  great  risks  in  the 
hope  of  great  rewards  must  be  regarded  as  taking  all  the  cir- 
cumstances into  consideration,  and  cannot,  with  reason,  ask  their 
government  to  complain  that  they  stand  on  a  common  footing 
with  native  subjects  in  respect  to  the  alleged  wants  of  an  able, 
prompt,  and  conscientious  judiciary.  We  cannot  undertake  to 
supervise  the  arrangements  of  the  whole  world  for  litigation,  be- 
cause American  citizens  voluntarily  expose  themselves  to  be  con- 
cerned in  their  deficiencies."48 

46  New    Hampshire    v.    Louisiana,  4S  To  Mr.  Burton,  Minister  to  Co- 

108  U.  S.  76,  2  Sup.  Ct.  Eep.  176,  27  lombia,  April  27,  1866;  No.  137, 
L.  ed.  662.  Dip.  Cor.  1866,  III,  522,  523. 

4T  To    Mr.    B.    J.    Shain,    May    28, 
1834,  26  MS.    Dom.  Let.  263. 


561  CLAIM  BASED  ON  TREATY  WITH  ITALY.  [§    575 

§  575.  Claim  based  on  treaty  with  Italy. — In  1901  the  com- 
plaint of  an  Italian  subject  was  presented  to  the  Department  of 
State,  claiming  that  a  judgment  entered  in  Colorado  was  in  vio- 
lation of  the  treaty  of  1871  between  the  United  States  and  Italy. 
The  portions  of  the  treaty  which  it  was  contended  related  to  the 
subject  were  articles  III  and  XIII.  The  first  of  these  (article  III) 
declared  that: 

"The  citizens  of  each  of  the  high  contracting  parties  shall  re- 
ceive, in  the  States  and  Territories  of  the  other,  the  most  con- 
stant protection  and  security  for  their  persons  and  property, 
and  shall  enjoy  in  this  respect  the  same  rights  and  privileges 
as  are  or  shall  be  granted  to  the  natives  on  their  submitting  them- 
selves to  the  conditions  imposed  upon  the  natives " 

The  second  provided  (Art.  XVIII)  :  "The  citizens  of  either 
party  shall  have  free  access  to  the  courts  of  justice  in  order 
to  maintain  and  defend  their  own  rights,  without  any  other  con- 
ditions, restrictions,  or  taxes  than  such  as  are  imposed  upon 
the  natives;  they  shall,  therefore,  be  free  to  employ,  in  defense 
of  their  rights,  such  advocates,  solicitors,  notaries,  agents,  and 
factors  as  they  may  judge  proper  in  all  their  trials  at  law;  and 
such  citizens  or  agents  shall  have  free  opportunity  to  be  present 
at  the  decisions  and  sentences  of  the  tribunals  in  all  cases  which 
may  concern  them ;  and  likewise  at  the  taking  of  all  examina- 
tions and  evidences  which  may  be  exhibited  in  the  said  trials." 

In  that  case,  the  widow  of  Pietro  Ferrara,  an  Italian  subject, 
instituted  a  suit  in  Colorado  against  a  mining  company  to  recover 
damages  for  the  death  of  her  husband,  who  was  an  employee  of 
the  company,  and  who  was  injured  by  the  falling  of  a  large  rock 
upon  him  while  employed  by  the  company,  and  whose  death  was 
the  result  of  his  injuries.  The  court  dismissed  the  action  on  the 
ground  that  the  plaintiff  was  a  nonresident  alien,  and  not  en- 
titled to  prosecute  it  in  the  courts  of  that  state.  An  appeal  was 
taken  and  was  granted  upon  condition  that  the  plaintiff  should 
file  an  appeal  bond.  She  did  not  perfect  the  appeal,  but  filed  a 
motion  for  a  new  trial,  and  as  one  of  the  grounds  of  the  motion  it 
was  asserted  that  the  judgment  was  in  violation  of  the  terms  of  the 
treaty  above  set  forth.  Her  motion  for  a  new  trial  having  been 
denied,  she  appealed  to  the  Italian  government  to  make  a  demand 
upon  the  United  States  for  the  sum  of  five  thousand  dollars,  for 

Treaties — 36 


§    576]  CLAIMS  AGAINST  GOVERNMENTS.  562 

which,  according  to  the  allegations  of  the  demand,  "she  was 
deprived  the  right  of  litigation  in  violation  of  the  said  treaty 
between  the  two  countries,  and  such  other  or  further  sum  as 
may  be  just  and  equitable  for  the  affront  and  indignity  which 
she  received  by  being  thus  discriminated  against."  Mr.  Hay, 
Secretary  of  State,  said  in  reply  that  the  case  was  not  one  for 
diplomatic  intervention,  because  the  plaintiff  had  not  exhausted 
her  judicial  remedy.  "It  frequently  happens,"  said  he,  "that 
litigants  are  denied  rights  by  the  decisions  of  inferior  courts  and 
are  obliged,  in  order  to  establish  such  rights,  to  carry  the  case 
to  the  courts  of  last  resort.  The  plaintiff  in  the  present  case 
should  pursue  the  judicial  remedy  afforded  by  our  laws,  perfect- 
ing her  appeal  to  the  court  of  appeals  (the  supreme  court)  of 
Colorado,  and,  if  necessary  thereafter,  by  appropriate  proceed- 
ings, bring  the  case  before  the  supreme  court  of  the  United 
States.  Furthermore,  under  the  laws  of  the  United  States,  the 
circuit  courts  of  the  United  States  have  original  jurisdiction  of 
civil  suits  like  the  present  one  to  which  an  alien  is  a  party.  It 
is  suggested  for  the  consideration  of  the  attorneys  of  the  plain- 
tiff whether  an  original  suit  should  not  be  brought  in  the  circuit 
court  of  the  United  States  for  the  district  of  Colorado.  Until 
the  remedy  of  recourse  to  the  civil  tribunals  has  been  exhausted 
by  the  plaintiff,  and  justice  is  finally  denied  her,  there  appears 
to  be  no  ground  for  the  presentation  of  a  diplomatic  claim. ' ' 49 

§  576.  Another  instance. — It  would  take  us  too  far  afield  to 
mention  the  many  cases  in  which  these  principles  have  been 
applied,  but  we  may  call  attention  to  another  instance  in  which 
the  views  held  by  the  United  States  were  clearly  expressed. 
John  H.  Tunstall,  a  British  subject,  residing  in  the  territory  of 
New  Mexico,  was  killed.  He  was  the  owner  of  a  ranch  in  that 
territory,  and  had  a  partner,  named  McSween.  An  attachment 
had  been  issued  against  the  property  of  the  latter,  and  the  sheriff 
authorized  a  deputy  to  serve  the  writ,  and  he  levied  on  certain 
livestock.  Service  of  the  writ  was  admitted  by  Tunstall,  who 
said  to  the  deputy  that  he  might  attach  the  stock  and  place  it  in 

49  Mr.  Hay,  Secretary  of  State,  to  any  obligation  to  indemnify  foreign 

Signor     Carignani,   Italian    Charg6,  residents  for  a  boycott.     See  section 

Aug.   24,   1901,   For.   Eel.   1901,   308.  544,  ante. 
The  United  States  cannot  recognize 


563  ANOTHER  INSTANCE.  [§    576 

charge  of  some  one  until  such  time  as  the  courts  should  deter- 
mine the  question  of  ownership  as  between  him  and  his  partner, 
McSween.     Instead  of  following  this  course,  the  deputy  departed, 
and  shortly  after  returned  to  the  ranch  with  a  posse.     In  the 
meantime  Tunstall  had  collected  the  stock  and  had  proceeded 
to  drive  it  to  the  county  seat,  some  miles  distant.     The  deputy 
sheriff  then  authorized  one  of  the  posse  with  eighteen  others  to 
pursue  Tunstall  and  capture  the  stock,  and  after  pursuing  him 
for  a  distance  of  eighteen  miles  they  overtook  him  and  began  to 
fire,  and  although  Tunstall  sought  to  escape,  he  was  shot  in  his 
flight  and  killed.     The  shooting  was  witnessed  by  only  three  per- 
sons, and  subsequently  two  of  these  died  through  violence,  and 
i  the  third  was  not  punished  nor  could  he  be  located.     It  was  con- 
tended by  the  British  government  that  the  members  of  the  party 
in  pursuit  were  the  personal  enemies  of  Tunstall,  and  that  the 
sheriff,  through  the  action  of  his  deputy  and  the  posse,  was  guilty 
of   murder   committed   in   the   execution    of   legal   process.     Sir 
Edward  Thornton,  the  British  Minister,  asserted  that  the  father 
of  the  deceased  possessed  a  pecuniary  interest  in  the  life  of  his 
]  son,   arising   from  business   operations   conducted   by   him,   and 
therefore,  as  the  sheriff  was  the  agent  of  the  United  States,  he, 
the  father,  was  entitled  to  recover  indemnity  from  the  United 
;  States.     The  Minister  asserted  that  the  father  was  powerless  to 
j  recover  damages  from  the   Territory  of  New  Mexico  by  legal 
;  proceedings  or  other  means,  and  that  while  an  American  citizen 
i  might  in  a  similar  case  appeal  to  Congress,  an  alien  could  not 
:  pursue  this  course,  and,  as  a  result,  the  United  States  must  be 
looked   to   for    compensation.     Mr.    Evarts    said   he    did   not   be- 
;  lieve  that  the  killing  of  an  American  citizen  under  similar  cir- 
;  cumstances   in   one   of  the   British   colonies   would   constitute   a 
I  claim  against  the  government  of  Great  Britain.50 

It  was  suggested  by  Mr.  Frelinghuysen,  as  Secretary  of  State, 
I  that  the  claim  be  referred  to  the  court  of  claims,  but  the  British 
>  government  declined  to  accept  this  suggestion  unless  the  United 
States  should  concede  its  liability.  A  re-examination  having 
'  been  requested,  Mr.  Bayard,  among  other  grounds,  held  there  was 
i  no  merit  in  the  claim,  because  "in  countries  subject  to  the  Eng- 

50  MS,     Notes    to    Great    Britain,    XVIII,    461;    6    Moore's    Int.    L.    D. 
(563. 


§    577]  CLAIMS  AGAINST  GOVERNMENTS.  564 

lish  common  law,  where  there  is  an  opportunity  given  of  a  prompt 
trial  by  a  jury  of  the  vicinage,  damages  inflicted  on  foreigners 
on  the  soil  of  such  countries  must  be  redressed  through  the  in- 
strumentalities of  courts  of  justice,  and  are  not  subject  to  diplo- 
matic intervention  by  the  sovereign  of  the  injured  party. ' ' 51 

§  577.  Discrimination  against  American  citizens. — If  an  Ameri- 
can citizen  is  more  harshly  treated,  or  more  severely  punished, 
because  he  is  a  native-born  citizen  of  the  United  States,  "it  would 
be  a  clear  case  of  the  violation  of  treaty  obligations,  and  would 
demand  the  interposition  of  the  government. ' '  52 

Mr.  Bayard,  who,  as  Secretary  of  State,  declined  to  present  a 
claim  of  an  American  citizen  for  the  murder  of  his  father  in 
Mexico,  expressed  the  principles  of  international  law  to  be  that: 
"We  can  no  more  permit  ourselves  to  seek  redress  for  injuries 
inflicted  by  private  individuals  in  Mexico  on  one  of  our  citizens 
than  we  could  permit  Mexico  to  intervene  to  seek  redress  for  in- 
juries inflicted  on  Americans  by  private  individuals  in  the  United 
States.  The  rule  is  that  where  the  judiciary  is  recognized  in  a 
country  co-ordinate  with  the  executive,  having  committed  to  it  all 
suits  for  redress  of  injuries  inflicted  on  aliens  as  well  as  on  citizens, 
then  the  judiciary  and  not  the  executive  must  be  appealed  to  for 
redress.  There  are,  it  is  true,  two  exceptions  recognized  to  this 
rule:  First,  when  there  is  undue  discrimination  against  the  party 
injured  on  account  of  his  nationality;  secondly,  where  the  local 
tribunals  are  appealed  to,  but  justice  was  denied  in  violation  of 
those  common  principles  of  equity  which  are  part  of  the  law  of 
nations."53 

51  Mr.  Bayard  to  Mr.  West,  Brit-  from    Tangiers.     The    consul-general 
ish  Minister,  June  1,  1885,  For.  Eel.  of  the   United   States  informed   the 
1885,  450.     A  number  of  other  simi-  authorities     of     Morocco     that     he 
lar    instances    can    be    found    in    6  would  hold  them  personally  respon- 
Moore's   Int.    L.   D.    656-677.  sible  for  the  act  of  the  bandit,  and 

52  Eeport  by  Mr.   Webster,  Secre-  a  squadron  was  ordered  sent  to  Tan- 
tary  of   State,   to   the  President;    6  giers.     On  July  22,  1904,  Mr.  Hay, 
Webster's  Works,  530.  Secretary  of  State,  sent  his  famous 

53  To  Mr.  Copeland,  Feb.  23,  1886,  dispatch    to    the    American    Consul- 
159  MS.  Dom.  Let.  138.  General     that     the     United     States 

In   1904,   the  bandit   Raisuli     car-       "wants  Pericardis  alive  or    Eaisuli 
ried  away  an  American  citizen  nam-       dead. "     Pericardis  was  released 
ed  Ion  Pericardis,  about  three  miles       the  24th  of  June  of  that  year,  a 


5 


565 


MONEY  IN   TRUST. 


[§  578 


$  578.  Moneys  received  from  foreign  governments  in  trust  for 
American  citizens. — In  the  act  of  Congress  of  February  26,  1896, 
making  appropriations  for  the  diplomatic  and  consular  service  for 
the  fiscal  year  ending  June  30,  1897,  the  following  provision  is 
made  for  the  disposition  of  trust  funds :  * '  Hereafter  all  moneys 
received  by  the  Secretary  of  State  from  foreign  governments  and 
other  sources,  in  trust  for  citizens  of  the  United  States  or  others, 
shall  be  deposited  and  covered  into  the  treasury.  The  Secretary 
of  State  shall  determine  the  amounts  due  claimants,  respectively, 
from  each  of  such  trust  funds,  and  certify  the  same  to  the  Secre- 


on  the  27th  of  June  the  squadron 
departed  from  Tangiers.  For.  Rel. 
1904,  496-504. 

' '  Any  person  disturbing  public 
tranquillity,  or  violating  the  sov- 
ereign rights  of  a  nation,  or  its  laws, 
offends  the  state,  declares  himself  its 
enemy,  and  incurs  just  punishment. 
His  responsibility  is  not  less  when, 
instead  of  attacking  the  state,  the 
crimes  or  offenses  of  which  he  has 
been  guilty  menace  personal  safety 
or  the  rights  and  property  of  in- 
dividuals. In  both  cases,  the  gov- 
ernment would  fail  to  perform  its 
duty  if  it  did  not  repress  the  injury 
committed  and  cause  the  offender  to 
feel  the  weight  of  its  penal  legis- 
lation. The  state  is  not  only  under 
obligations  to  secure  the  reign  of 
peace  and  justice  among  the  differ- 
ent members  of  the  society  whose 
organ  it  is;  it  must  also  see,  and 
that  most  carefully,  that  all  who 
are  under  its  authority  offend 
neither  the  government  nor  the  citi- 
zens of  other  countries.  Nations  are 
obliged  to  respect  one  another,  to 
abstain  from  offending  or  injuring 
each  other  in  any  way,  and,  in  a 
word,  from  doing  anything  that 
can  impair  each  other '«  interests  and 
disturb  the  harmony  which  should 
govern  their  relations.  A  state  that 


permits  its  immediate  subjects  or 
citizens  to  offend  a  foreign  nation 
becomes  a  moral  accomplice  in  their 
offenses  and  renders  itself  person- 
ally responsible. 

' '  As  regards  its  enforcement,  this 
principle  has  nothing  absolute,  and 
admits  of  reservations  inherent  in 
the  very  nature  of  things;  for  there 
are  private  acts  which  the  most  vigi- 
lant authority  cannot  prevent,  and 
which  the  wisest  and  most  complete 
legislation  cannot  always  hinder,  or 
repress.  All  that  other  nations  can 
ask  of  a  government  is  that  it  shall 
show  that  it  is  influenced  by  a  deep 
sense  of  justice  and  impartiality, 
and  that  it  shall  admonish  its  sub- 
jects by  all  the  means  in  its  power 
that  it  is  their  duty  to  respect  their 
international  obligations,  that  it 
shall  not  leave  offenses  into  which 
they  may  have  been  led  unpunished; 
and  finally,  that  it  shall  act  in  all  re- 
spects in  good  faith  and  in  accord- 
ance with  the  precepts  of  natural 
law;  to  go  beyond  this  would  be 
raising  a  private  injury  to  the  mag- 
nitude of  a  public  offense,  and  would 
be  holding  an  entire  nation  responsi- 
ble for  a  wrong  done  by  one  of  its 
members."  Calvo.  Int.  Law,  sec. 
1271. 


§    579]  CLAIMS  AGAINST  GOVERNMENTS.  566 

tary  of  the  Treasury,  who  shall,  upon  the  presentation  of  the  cer- 
tificates of  the  Secretary  of  State,  pay  the  amounts  so  found  to 
be  due.  Each  of  the  trust  funds  covered  into  the  treasury  as 
aforesaid  is  hereby  appropriated  for  the  payment  to  the  ascer- 
tained beneficiaries  thereof  of  the  certificates  herein  provided 
for."54 

§  579.  Payment  of  interest  on  claims. — In  the  absence  of  an 
express  statute,  there  is  no  obligation  on  the  United  States  to  pay 
interest  on  claims  against  it.  If,  acting  through  the  Secretary  of 
State,  the  government  of  the  United  States  has  unlawfully  with- 
held money  paid  under  an  agreement  of  arbitration  between  the 
United  States  and  a  foreign  country,  a  claim  for  such  unlawful 
withholding  against  the  Secretary  of  State  is  a  claim  against  the 
government  of  the  United  States.  Consequently,  the  government 
of  the  United  States  is  not  liable  for  interest  on  the  money  so  with- 
held.55 "It  has  been  established  as  a  general  rule  in  the  prac- 
tice of  the  government,"  said  Mr.  Justice  Blatchford,  "that  in- 
terest is  not  allowed  on  claims  against  it,  whether  such  claims 
originate  in  contract  or  in  tort,  and  whether  they  arise  in  the 
ordinary  business  of  administration  or  under  private  acts  of  relief 
passed  by  Congress  on  special  application.  The  only  recognized 
exceptions  are  where  the  government  stipulates  to  pay  interest, 
and  where  interest  is  given  expressly  by  an  act  of  Congress, 
either  by  the  name  of  interest  or  by  that  of  damages. ' ' 56 

Where  it  does  not  appear  that  the  parties  to  a  contract  had  some 
particular  place  in  view,  their  contracts,  so  far  as  their  nature, 
validity  and  interpretation  are  concerned,  are  to  be  controlled  by 
the  law  of  the  place  in  which  they  are  made.  North  Carolina, 
by  the  decisions  of  that  state,  where  there  is  no  statute  on  the 
subject,  is  not  liable  for  interest,  and  although  bonds  of  that 
state  may  be  payable  in  New  York,  they  do  not  bear  interest 
and  are  not  subject  to  the  law  of  New  York  as  to  the  payment  of 
interest  on  such  obligations.57  ' '  Interest, ' '  said  Mr.  Justice  Gray, 

54  29  U.  S.  Stats,  at  Large,  32.  S.  251,  8  Sup.  Ct.  Eep.  1156,  32  L. 

55  United    States    v.    Bayard,     127       ed.  159. 

U.  S.  251,  8  Sup.  Ct.  Rep.  1156,  32  5T  United  States  v.  North  Carolina, 

L.   ed.   159.  136  U.  S.  216,  10  Sup.  Ct.  Eep.  922, 

56  United  States  v.  Bayard,  127  U.       34  L.   ed.   336. 


567  DEFAULT  NOT  ATTRIBUTED  TO  GOVERNMENT.  [§    580 

"when  not  stipulated  for  by  contract,  or  authorized  by  statute, 
is  allowed  by  the  courts  as  damages  for  the  detention  of  money 
or  of  property,  or  of  compensation,  to  which  the  plaintiff  is  en- 
titled ;  and,  as  has  been  settled  on  grounds  of  public  convenience, 
is  not  to  be  awarded  against  a  sovereign  government,  unless  its 
consent  to  pay  interest  has  been  manifested  by  an  act  of  its  legis- 
lature, or  by  a  lawful  contract  of  its  executive  officers. ' ' 58 


Default  not  attributed  to  government. — Mr.  Justice 
Strong  said  that  whenever  interest  is  allowed,  "either  by  statute 
or  by  common  law,  except  in  cases  where  there  has  been  a  cpn 
tract  to  pay  interest,  it  is  allowed  for  delay  or  default  of  the 
debtor.  But  delay  or  default  cannot  be  attributed  to  the  govern- 
ment. It  is  presumed  to  be  always  ready  to  pay  what  it  owes. ' '  59 
Where  internal  revenue  taxes  have  been  paid  without  protest, 
the  allowance  of  interest  has  been  denied.60  In  New  York,  in- 
terest was  paid  by  the  state  to  its  canal  fund  for  money  borrowed 
from  it  under  an  agreement  by  its  officers  to  pay  such  interest. 
This  expense  was  incurred  by  the  state  in  raising  troops  for  the 
national  defense,  to  be  repaid  to  the  state  by  the  United  States. 
The  supreme  court  of  the  United  States  held  that  the  interest  was 
an  expense  properly  incurred  as  a  part  of  the  "costs,  charges,  and 
expenses  properly  incurred"  within  the  meaning  of  the  act  of 
Congress  to  be  reimbursed  to  the  state  by  the  government  of 
the  United  States.  The  decision  was  placed  upon  the  ground  that 
the  state  could  not  legally  borrow  from  the  canal  fund  without 
the  payment  of  interest.61  By  the  statute  creating  the  court  of 
claims,  when  the  judgment  appealed  from  is  in  favor  of  the 
claimant,  and  the  same  is  affirmed  by  the  supreme  court,  interest 

68  United  States  v.  North  Carolina,  States    v.    Barber,    74   Fed.    484,    41 

supra.  IT.  S.  App.  424,  20  C.  C.  A.  616;  Carr 

39  United    States    v.    Sherman,    98  v.   State,   127   Ind.   218,  22  Am.   St. 

U.  S.  565,  25  L.  ed.  235.  Eep.  624,  26  N.  E.  783,  11  L.  E.  A. 

80  Commissioners  of  Sinking  Fund  375;    Hawkins   v.    Mitchell,    34   Fla. 

v.  Buckner,  48  Fed.  542.     See,  also,  421,   16   South.  316;   Seton  v.  Hoyt, 

United    States    v.    Barber,    74    Fed.  34  Or.  272,  75  Am.  St.  Eep.  643,  55 

484,  20  C.  C.  A.  616,  41  U.  S.  App.  Pac.  968,  43  L.  E.  A.  635. 

424;    Baxter    v.    United    States,    51  61  United  States  v.  State  of  New 

Fed.  675,  2  C.  C.  A.  411;  Walton  v.  York,  160  U.  S.  619,  16  Sup.  Ct.  Eep. 

United  States,  61  Fed.  487;  Bunton  410,  40  L.  ed.  551. 
v.  United  States,  62  Fed.  172;  United 


§§    581,    582]  CLAIMS   AGAINST   GOVERNMENTS.  568 

is  allowed  on  it  at  the  rate  of  five  per  cent  per  year  from  the  date 
of  its  presentation  to  the  Secretary  of  the  Treasury  for  payment, 
but  no  interest  is  allowed  subsequent  to  the  affirmance,  unless  it 
is  presented  to  the  Secretary  of  the  Treasury.62 

§  581.  Questions  involving  title  to  real  estate. — The  descent, 
alienation  and  transfer  of  land  is  controlled  by  the  laws  of  the 
state  in  which  the  land  is  situated,  as  likewise  the  construction 
and  effect  of  instruments  by  which  its  conveyance  is  affected.63 
The  rule  may  be  said  to  be  universal  "that  every  question  in- 
volving title^  to  real  estate,  whether  by  descent  or  purchase, 
must  be  determined  by  the  law  of  the  country  wherein  such  real 
estate  is  situated,  and  all  remedies  for  injuries  in  respect  thereof 
must  be  pursued  by  the  aggrieved  party  before  the  duly  consti- 
tuted tribunals  of  such  country. ' '  64 

Still,  the  United  States  held  that  a  Mexican  statute  which  dis- 
criminated against  its  citizens  and  other  aliens  relative  to  the 
capacity  to  hold  real  estate  in  Mexico,  conflicted  with  the  treaty, 
then  existing.65  But  it  is  to  be  observed  that  trespasses  and 
evictions,  when  they  may  be  characterized  as  a  forcible  depriva- 
tion without  recourse  to  law,  may  become  the  subjects  of  diplo- 
matic intervention.66 

§  582.  Claims  arising  on  contracts. — As  a  general  proposition, 
the  United  States  will  not  interfere,  except  by  its  good  offices 
in  the  prosecution  of  claims  based  on  contracts  made  with  foreign 
governments.67  But  there  may  be  «ases  where  diplomacy  is  the 

*a  U.  8.  Kev.  Stats.,  sec.  1090.  MS.  Dom.  Let.  78;  Mr.  Day,  Secre- 

61  Brene    v.    Insurance   Co.,   96    U.  tary  of  State,  to  Mr.  Buchanan,  Min- 

S.  627,  24  L.  ed.  858.  ister    to     Argentine     Eepublic,    No. 

64  Mr.  Marcy,  Secretary  of  State,  362,    May  31,   1898,  MS.  Inst.   Arg. 
to    Mr.   Selding,   March   3,    1856,   45  Rep.  XVII,  363;  Mr.  Day,  Secretary 
MS.  Dom.,  Let.  123.  of  State,  to  Mr.  Ketcham,  July  28, 

65  Mr.  Evarts,  Secretary  of  State,  1898,  230  MS.  Dom.  Let.  414;    Mr. 
to   Mr.   Foster,   June   23,    1879,   MS.  Hay,  Secretary  of  State,  to  Mr.  Pow- 
Inst.  Mex.  XXI.  ell,     Minister     to     Hayti,     No.     338, 

68  2  Wharton's  Int.  Law  Dig.  667,  April  12,  1899,  MS.  Inat.  Hayti,  IV, 

note.  143;  Mr.  Hay,  Secretary  of  State, 

67  Mr.  Olney,  Secretary  of  State,  to  Messrs.  E.  Becker  &  Co.,  April  12, 

to  Mr.  Meyer,  Nov.  16,  1895,  206  1899,  236  MS.  Dom.  Let.  298. 


569  THE  COURT  OF  CLAIMS.  [§  583 

only  method  by  which  redress  can  be  obtained.08  It  has  been 
frequently  said  that  the  government  of  the  United  States  will  in- 
sist on  a  fair  and  impartial  examination  and  adjudication  without 
discrimination  as  to  nationality  of  a  claim  based  on  contract  made 
by  a  citizen  of  the  United  States  against  another  government. 
It  is-  not  required  by  the  United  States  that  rights  which  its 
citizens  have  forfeited  should  be  maintained,  but  that  they  should 
not  be  arbitrarily  deprived  of  those  rights  without  a  fair  exam- 
ination by  an  impartial  tribunal.69  It  was  claimed  by  an  Ameri- 
can citizen  that  the  Russian  government  was  using  an  invention 
made  by  him  in  its  fortifications  and  vessels,  and  he  sought  the 
aid  of  the  United  States  to  obtain  reimbursement  from  the  gov- 
ernment of  Russia,  but  Mr.  Fish,  Secretary  of  State,  held  that 
the  matter  was  not  one  which  could  properly  be  presented  through 
diplomatic  channels.70  Governments  have  also  frequently  made 
reparation  for  false  or  irregular  arrests,71  but  if  the  proceedings 
have  been  regular,  indemnity  is  not  demanded.72 

§  583.  The  court  of  claims. — The  court  of  claims  has  juris- 
diction of  all  claims  founded  upon  any  law  of  Congress,  or  upon 
any  regulation  of  an  executive  department,  or  upon  any  eon- 
tract,  expressed  or  implied,  with  the  government  of  the  United 
States,  and  all  claims  that  may  be  referred  to  it  by  either  House 
of  Congress.78  But  its  jurisdiction,  however,  does  not  extend 
to  any  claim  against  the  government  not  pending  therein,  on 
December  1,  1862,  growing  out  of  or  dependent  on  any  treaty 
stipulation  entered  into  with  foreign  nations  or  writh  the  Indian 
tribes.74  A  suit  brought  against  the  United  States  for  the  pur- 
pose of  recovering  an  unsatisfied  part  of  a  judgment  rendered 
in  the  Court  of  Commissioners  of  Alabama  Claims,  which  the 
Secretary  of  the  Treasury  illegally  withheld  from  the  party 
entitled  to  it,  is  not  a  case  growing  out  of  and  dependent  on  the 
treaty  between  the  United  States  and  Great  Britain.  The  court 
of  claims  is  not  prohibited  from  taking  jurisdiction  of  this  claim, 
because  the  claimants  are  seeking  to  recover  upon  the  specific 

68  Moore's  Int.  L.  Dig.  717.  T1  See  6  Moore's  Int.  L.  Dig.  767. 

69  6  Moore's  Int.  L.  Dig.  724.  72  6    Moore's    Int.    L.    Dig.    765. 

70  To   Mr.   Meyers,  M.   C.,  Jan.   27,  T3  Eev.  Stats.,  sec.  1059. 
1875,  106  MS.  Dom.  Let.  311.                          74  Rev.  Stats.,  sec.  1066. 


§    584]  CLAIMS  AGAINST  GOVERNMENTS.  570 

appropriation  made  by  Congress  and  not  upon  any  obligation 
created  by  the  treaty  itself.  While  it  might  be  said  that  a  claim  of 
this  nature  in  one  sense  is  dependent  upon  the  treaty,  the  depend- 
ence is  too  remote  to  be  affected  by  the  statute,  which  contemplates 
a  direct  connection  between  the  treaty  and  the  claim,  to  prevent  the 
court  of  claims  from  having  jurisdiction  of  it.75  But  if  the  peti- 
tion bases  the  right  to  recovery  on  the  provisions  of  the  treaty  it- 
self, and  no  statute  is  invoked  nor  is  it  charged  that  the  United 
States  is  directly  and  primarily  liable  on  the  claim,  the  court  has 
no  jurisdiction.76 

As  the  jurisdiction  of  the  court  of  claims  is  limited  to  claims 
against  the  United  States,  it  has  no  jurisdiction  of  a  claim  against 
the  District  of  Columbia  which  Congress  referred  to  the  court.77  A 
state  is  competent  to  maintain  a  suit.78  A  claim  for  unliquidated 
damages  on  contract  exists  where  the  Secretary  of  War  dispos- 
sessed a  lessee  who  had  a  valid  lease  before  the  expiration  of  his 
term.79  The  law  of  the  state  where  the  cause  of  action  arose  or 
where  the  claim  accrued  is  considered  by  the  court  in  all  cases 
where  questions  arise  affecting  the  validity  of  contracts,  the  title 
to  property,  the  distribution  of  estates,  or  the  proper  parties  to 
prosecute  a  case.80 

§  584.  Jurisdictional  requirements. — While  it  is  a  general 
rule  that  the  courts  of  one  state  will  not  lend  assistance  to  the 
officers  of  another  to  withdraw  funds  or  property  of  a  decedent, 
without  making  provision  for  local  creditors,  this  rule  does  not 
require  the  treasurer  of  the  United  States,  in  paying  the  amount 
due  to  a  claimant  against  the  United  States,  to  prefer  his  creditors 
residing  in  the  District  of  Columbia  over  the  receiver  of  personal 
property  of  such  claimant  appointed  by  a  court  of  chancery  of  the 

75  United  States  v.  Weld,  127  U.  S.  7T  Strachan  v.  District    of    Colum- 
51,  8  Sup.  Ct.  Rep.  1000,  32  L.  ed.       bia,  20  Ct.  of  01.  484. 

62.  7S  Louisiana  v.  United    States,    22 

76  Great  Western  Ins.  Co.  v.  United       Ct.  of  01.  85. 

States,  112  U.  S.  193,  5  Sup.  Ct.  Eep.  79  Dunbar  v.  United  States,  22  Ct. 

99,  28  L.  ed.  687;    Ailing  v.  United  of  01.  109. 

States,  114  U.  S.  562,  5  Sup.  Ct.  Eep.  80  Borcherling  v.  United  States,  35 

1080,  29  L.  ed.  272.    These  cases  are  Ct.  of  01.  312;   United  States  v.  Bor- 

distinguished    in    United    States    v.  cherling,  185  U.  S.  223,  22  Sup.  Ct. 

Weld,  127  U.  S.  51,  8  Sup.  Ct.  Eep.  Eep.  607,  46  L.  ed.  884. 

1000,  32  L.  ed.  62. 


571 


JURISDICTIONAL    REQUIREMENTS. 


[§  584 


state  in  which  he  lived  and  was  served  with  process.81  This 
court  cannot  establish  a  jurisdictional  requirement,  as  Congress 
alone  has  the  power  to  do  this.82  There  is  an  implied  contract 
on  the  part  of  the  United  States  to  pay  for  land  appropriated  to  a 
public  use,  which  is  admitted  to  be  private  property.83  But  there 
is  no  implied  contract  to  make  compensation  for  the  use  and 
occupation  of  the  land  of  a  private  citizen  where  it  is  taken  by 
the  United  States  under  a  claim  that  it  is  the  property  of  the 
government.84  Claims  are  barred  within  six  years  after  they 
accrue.85  Aliens  may  prosecute  claims  where  their  governments 
grant  reciprocity,  the  state  declaring  that  aliens  "who  are  citizens 
or  subjects  of  any  government  which  accords  to  citizens  of  the 
United  States  the  right  to  prosecute  claims  against  such  govern- 
ment in  its  courts  shall  have  the  privilege  of  prosecuting  claims 
against  the  United  States  in  the  court  of  claims,  whereof  such 


81  United    States    v.    Borcherling, 
185.  U.  S.  223,  22  Sup.  Ct.  Kep.  607, 
46  L.  ed.  884. 

82  Clyde  v.  United  States,  13  Wall. 
38,  20  L.  ed.  479. 

83  United    States    v.    Great    Falls 
Mfg.  Co.,  112  U.  S.  645,  5  Sup.  Ct. 
Eep.  306,  28  L.  ed.  846;    Great  Falls 
Mfg.   Co.   v.    Attorney   General,   124 
U.  S.  581,  8  Sup.  Ct.  Eep.  631,  31  L. 
ed.  527;    Merriam  v.  United  States, 
29  Ct.  of  Cl.  250;    Morris  y.  United 
States,  30  Ct.  of  Cl.  162;    Dunning- 
ton  v.  United  States,  24  Ct.  of  Cl. 
404. 

84  Langford  v.  United  States,  101 
U.   S.   341,   25  L.   ed.   1010;    Hill  v. 
United  States,  149  U.  S.  593,  13  Sup. 
Ct.  Rep.  1011,  37  L.  ed.  862. 

85  Eev.   Stats.,   sec.   1069.     An   ac- 
tion will  lie  to  the  court  where  an 
officer,  clothed  with  authority  to  in- 
vestigate and  allow,  determines  the 
facts  of  the   case  and  refers  it  to 
the  court  for  a  determination  of  the 
question  presented,  or  where  the  of- 
ficer   has    allowed     the     claim     and 
transmitted  it  to  the  accounting  of- 


ficers for  payment,  and  they  or  the 
Secretary  of  the  Treasury  refuse  to 
give  effect  to  the  award.  Kauf- 
man's Case,  11  Ct.  of  Cl.  659;  af- 
firmed 96  U.  S.  567,  24  L.  ed.  792; 
Horton  v.  United  States,  31  Ct.  of 
Cl.  48;  Brigg's  Case,  15  Ct.  of  Cl. 
48;  Stotesburg  v.  United  States,  23 
Ct.  of  Cl.  285;  Greencastle  'a  Bank 
Case,  15-  Ct.  of  Cl.  225;  Nixon  v. 
United  States,  18  Ct.  of  Cl.  448; 
Sybrandt  v.  United  States,  19  Ct. 
of  Cl.  461;  Eeal  Estate  Sav.  Bank's 
Case,  16  Ct.  of  Cl.  335;  affirmed 
104  U.  S.  728,  26  L.  ed.  908;  Dupas- 
seur  v.  United  States,  19  Ct.  of  Cl. 
1;  Eamsay  v.  United  States,  21  Ct. 
of  Cl.  443.  This  court  has  no  juris- 
diction where  the  claim  presented 
is  for  a  wrongful  diversion  of  a 
watercourse.  Mills  v.  United  States, 
46  Fed.  738,  12  L.  E.  A.  673.  The 
court  has  no  jurisdiction  of  a  claim 
for  the  infringement  of  a  patent. 
Pitcher's  Case,  1  Ct.  of  Cl.  7; 
Schillinger  v.  United  States,  155  U. 
S.  163,  15  Sup.  Ct.  Eep.  85,  39  L. 
ed.  108. 


§§  585,  586]          CLAIMS  AGAINST  GOVERNMENTS.  572 

court,  by  reason  of  their  subject  matter  and  character,  might  take 
jurisdiction. ' ' 86 

§  585.  The  Bowman  Act. — In  1883  Congress  passed  an  act 
commonly  known  as  "The  Bowman  Act,"  which  provides  "that 
whenever  a  claim  or  matter  is  pending  before  any  committee  of 
the  Senate  or  House  of  Representatives,  or  before  either  House 
of  Congress,  which  involves  the  investigation  and  determination 
of  facts,  the  committee  or  House  may  cause  the  same,  with  the 
vouchers,  papers,  proofs,  and  documents  pertaining  thereto,  to  be 
transmitted  to  the  court  of  claims  of  the  United  States,  and  the 
same  shall  there  be  proceeded  in  under  such  rules  as  the  court- 
may  adopt.  When  the  facts  shall  have  been  found,  the  court 
shall  not  enter  judgment  thereon,  but  shall  report  the  same  to  the 
committee  or  to  the  House  by  which  the  case  was  transmitted 
for  its  consideration."  Another  section  provides:  "That  when  a 
claim  or  matter  is  pending  in  any  of  the  executive  departments 
which  may  involve  controverted  questions  of  fact  or  law,  the 
head  of  such  department  may  transmit  the  same,  with  the  vouch- 
ers, papers,  proofs,  and  documents  pertaining  thereto,  to  said 
court,  and  the  same  shall  be  proceeded  in  under  such  rules  as  the 
court  may  adopt.  When  the  facts  and  conclusions  of  law  shall 
have  been  found,  the  court  shall  not  enter  judgment  thereon,  but 
shall  report  its  findings  and  opinions  to  the  department  by  which 
it  was  transmitted  for  its  guidance  and  action."87 

§  586.  Liberal  construction  of  act. — This  act  is  liberally  con- 
strued, because  it  is  a  remedial  act  by  which  it  is  intended  to 
relieve  Congress  and  afford  redress  to  the  claimant.88  Letters 
and  ex  parte  statements  are  excluded.89  There  is,  however,  no 
jurisdiction  in  the  court  to  determine  a  diplomatic  claim  pre- 
sented by  a  foreign  government  to  the  Secretary  of  State,  al- 
though it  has  been  transmitted  by  him  to  the  court.90  The  court 
does  not  enforce  the  strict  rules  of  pleading,  but  pays  attention 
to  the  substance ;  and  the  case  will  not  be  dismissed,  if  by  reasoi 

86  Eev.  Stats.,  sec.  1068.  89  West  Virginia  v.  United  State 

87  22  U.  S.  Stats,  at  Large,  485.  37  Ct.  of  Cl.  205. 

88  Duplantier  v.  United  States,  27  "°  Berger  v.  United  States,  36  Ct 
Ct.  of  Cl.  323.  of  01.  243. 


573  THE  TUCKER  ACT.  [§    587 

able  intendment  the  purpose  of  Congress  can  be  subserved  by  the 
finding  of  the  court.  On  the  contrary,  the  court  will  examine 
and  report  according  to  the  requirements  of  the  statute.91  The 
act  does  not  provide  for  an  appeal  to  the  supreme  court,  as  no 
judgment  is  entered  under  its  provisions.02  The  petition  of  claim- 
ant must  set  up  substantially  the  same  cause  of  action  as  that 
transmitted  to  the  court,  as  the  jurisdiction  of  a  claim  stated 
in  a  bill  is  confined  to  the  claim  which  the  bill  describes.93 

§  587.  The  Tucker  Act.— In  1887  an  act  was  passed  by  Con- 
gress, commonly  known  as  the  Tucker  Act,  which  was  intended  as 
an  enlargement  of  the  jurisdiction  of  the  court  of  claims.  It 
provided  that  this  court  should  have  jurisdiction  to  hear  and 
determine  ' '  all  claims  founded  upon  the  constitution  of  the  United 
States,  or  any  law  of  Congress,  except  for  pensions,  or  upon  any 
regulation  of  an  executive  department,  or  upon  any  contract, 
express  or  implied,  with  the  government  of  the  United  States,  or 
for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort,  in  respect  of  which  claims  the  party  would  be  entitled  to 
redress  against  the  United  States  either  in  a  court  of  law,  equity, 
or  admiralty,  if  the  United  States  were  suable. ' ' 94  Under  the 
provisions  of  this  act  the  court  of  claims  has  power  to  reform  a 
contract  so  as  to  carry  into  effect  the  intention  of  the  parties.95 
The  act,  being  remedial  in  its  character,  should  receive  a  liberal 
construction.90  A  claimant  cannot  overcome  the  provision  of  the 
I  act,  denying  jurisdiction  in  cases  sounding  in  tort,  by  waiving 
!  the  tort,  and  suing  as  if  on  a  contract,  even  where  the  common 
law  would  permit  him  to  do  so.97 

91  Gofer   v.   United   States,   30   Ct.      claims,'    or    to    hear    and    determine 
of  Cl.   131.  other  claims,  which  have  heretofore 

92  Webb   v.   United   States,  20   Ct.       been    rejected,    or    reported    on    ad- 
'  of  Cl.  496.  versely   by   a   court,   department,   or 

93  Choctaw      Nation      v.      United  commission   authorized   to    hear   and 
States,  19  Ct.  of  Cl.  250.  determine  the  same." 

94  24   U.    S.    Stats,    at   Large,   505.  95  South    Boston    Iron    Works    v. 
It   is   provided   that   nothing   "shall  United  States,  34  Ct.  of  Cl.  174. 

be  construed  as  giving  to  either  of  flfi  Southern  Pac.  K.  Co.  v.  United 

the   courts   herein   mentioned     juris-  States,  38  Fed.  55. 

;  diction  to  hear  and  determine  claims  9T  Me  Arthur  v.   United  States,  29 

growing  out  of  the  late  Civil  War,  Ct.    of   Cl.    194. 
and      commonlv     known      as      'war 


5    5881  CLAIMS  AGAINST  GOVERNMENTS.  574 

The  word?  "claims  founded  upon  the  Constitution  of  the  United 
States,"  confer  jurisdiction  of  as  comprehensive  and  untram- 
meled  character,  as  the  legislative  power  could  well  make.08  It 
is  not  necessary,  under  this  act,  to  make  a  demand  on  an  execu- 
tive department  before  commencing  suit."  If  a  petition  is  filed 
tor  equitable  relief,  it  should  be  reasonably  definite  and  certain 
in  its  statements  of  facts.100  A  claim  does  not  sound  in  tort,  where 
an  agent  who  has  authority  to  contract  for  the  government  inter- 
feres in  an  improper  manner  with  the  completion  of  a  contract 
made  with  such  agent.  The  contractor  in  such  a  case  is,  under 
this  act,  entitled  to  recover.101 

§  588.     Concurrent  jurisdiction  of  district  and  circuit  courts.— 

The  "Tucker  Act"  provides  that  "the  district  courts  of  the 
United  States  shall  have  concurrent  jurisdiction  with  the  court  of 
claims,  as  to  all  matters  named  in  the  preceding  section,  where  the 
amount  of  the  claim  does  not  exceed  one  thousand  dollars,  and 
the  circuit  courts  of  the  United  States  shall  have  such  concurrent 
jurisdiction  in  all  cases  where  the  amount  of  such  claim  exceeds 
one  thousand  dollars  and  does  not  exceed  ten  thousand  dollars. 
All  cases  brought  and  tried  under  the  provisions  of  this  act  shall 
be  tried  without  a  jury. ' ' 102  By  an  amendment  made  on  June  27, 
1898,  it  is  provided  that  the  jurisdiction  conferred  upon  the  dis- 
trict and  circuit  courts  "shall  not  extend  to  cases  brought  to 
recover  fees,  salary  or  compensation  for  official  services  of  officers 
•if  the  United  States,  or  brought  for  such  purpose  by  persons 

98  Stovall  v.  United  States,  26  Ct.  Cl.    243;     Bryan    v.    United    States, 

of  Ci.  240.  21  Ct.  of  Cl.  249;    United  States  v. 

89  Kendall's    Case,    14    Ct.    of    Cl.  Fitch,  70  Fed.  578,  17  C.  C.  A.  233; 

122;    affirmed  107  U.  S.  123,  2  Sup.  United  States   v.   Ewing,   140  U.   S. 

Ct.    Eep.   277,    27   L.   ed.   437;     Car-  142,  11  Sup.  Ct.  Kep.  743,  35  L.  ed. 

lisle  v.  United  States,  29  Ct.  of  Cl.  388;    United   States  v.   Fletcher,  47 

414;     Battelle's    Case,    7    Ct.    of    Cl.  U.  S.  664,  13  Sup.  Ct.  Eep.  434,  37 

297;     Cotton    v.    United    States,    29  L.  ed.  322. 

Ct.    of    Cl.    207;      Spann  v.  United  10°  Schierling  v.  United  States,  2 

States,  21  Ct.  of  Cl.  267;    Bulkley's  Ct.  of  Cl.  361. 

Case,  8  Ct.  of  Cl.  519;    Leonard  v.  101  Bowe  v.  United  States,  42  Fee 

United  States,    18    Ct.    of  Cl.    382;  761. 

United  States  v.  Knox,  128  U.  S.  230,  102  24   U.   S.   Stats,   at  Large,  505 

9   Sup.   Ct.   Eep.   63,   32  L.   ed.  465;  sec.  2. 
Eavesies  v.  United  States,  21  Ct.  of 


575  PROCEDURE  UNDER  THIS  ACT.  [§    589 

claiming  as  such  officers  or  as  assignees  or  legal  representatives 
thereof."103  Letter  carriers  in  the  postal  service  are  within  the 
meaning  of  this  amendment.  "Letter  carriers  are  appointed  by 
the  postmaster-general  under  authority  of  the  acts  of  Congress, 
practically  during  good  behavior.  They  are  sworn  and  give  bond 
for  the  faithful  performance  of  their  duties.  They  are  paid  from 
moneys  appropriated  for  the  purpose  by  Congress,  and  their  sal- 
aries are  fixed  by  law.  They  have  regularly  prescribed  services 
to  perform,  and  their  duties  are  continuing  and  permanent,  not 
occasional  or  temporary. ' ' 104  The  constitution  of  the  United 
States  is  not  violated  by  the  provision  for  trial  by  the  court  with- 
out a  jury.105 

§  589.  Procedure  under  this  act. — In  proceeding  under  this  act 
the  plaintiff  is  required  to  file  a  petition,  "duly  verified,  with 
the  clerk  of  the  respective  court  having  jurisdiction  of  the  case, 
and  in  the  district  where  the  plaintiff  resides.  Such  petition 
shall  set  forth  the  full  name  and  residence  of  the  plaintiff,  the 
nature  of  his  claim,  and  a  succinct  statement  of  the  facts  upon 
which  the  claim  is  based,  the  money  or  any  other  thing  claimed, 
or  the  damages  sought  to  be  recovered,  and  praying  the  court 
for  a  judgment  or  decree  upon  the  facts  and  law. ' ' 106  The  plain- 
tiff is  required  to  serve  a  copy  of  his  petition  upon  the  district 
s  attorney  of  the  United  States,  in  the  district  in  which  suit  is 
brought,  and  to  mail  a  copy  by  registered  letter  to  the  attorney 
(general  of  the  United  States,  and  to  cause  to  be  filed  with  the 
;  clerk  of  the  court  in  w^hich  the  suit  is  instituted  an  affidavit  of 
such  service  and  of  the  mailing  of  such  letter.  It  is  made  the  duty 
of  the  district  attorney  upon  whom  service  is  made  to  appear 
and  defend  the  interests  of  the  government,  and  within  sixty 
days  after  the  service,  unless  the  time  should  be  extended  by  order 
of  the  court,  to  file  a  plea,  answer,  or  demurrer,  on  the  part  of  the 
government,  and  to  file  a  notice  of  any  counterclaim,  setoff,  claim 
for  damages,  or  other  demand,  or  defense  of  the  government.  If 
the  district  attorney  should  fail  so  to  act,  the  plaintiff  may  pro- 

103  30  U.  S.  Stats,  at  Large,  495.  U.    S.    426,    26   L.    ed.    189;     United 

104  United    States   v.    McCrory,   91  States  v.  Saunders,  79  Fed.  407,  24 
Fed.  295,  33  C.  C.  A.  515.  C.  C.  A.  649. 

105  McElrath  v.  United  States,  102  10°  24  U.  S.  Stats,  at  Large,  506. 


§    590]  CLAIMS  AGAINST  GOVERNMENTS.  576 

ceed  with  the  case  under  such  rules  as  may  be  adopted  by  the 
court,  but  the  plaintiff  is  not  permitted  to  have  judgment  for  his 
claim  or  any  part  of  it,  unless  he  shall  establish  the  same  by  satis- 
factory proof.107  The  form  of  the  petition  is  immaterial,  and  a 
demurrer  to  it  should  not  be  sustained  if  facts  are  set  forth  from 
which  a  contract  may  be  implied,  or  if  it  states  lawful  and  author- 
ized acts  of  the  government,  not  amounting  to  torts  of  its  agents, 
upon  Vhich  there  may  be  sustained  an  obligation  to  pay  dam- 
ages.108 

§  590.  Judgments  and  appeals. — It  is  the  duty  of  the  court  to 
cause  a  written  opinion  to  be  filed,  setting  forth  its  specific  find- 
ings of  facts  and  conclusions  of  law,  and  to  render  judgment 
accordingly.  "If  the  suit  be  in  equity  or  admiralty,  the  court 
shall  proceed  with  the  same  according  to  the  rules  of  such 
courts. ' ' 109  The  findings  of  facts  are  equivalent  to  the  verdict 
of  a  jury.110  If  the  facts  are  not  in  dispute,  and  if  it  appear  from 
the  pleadings,  exhibits  and  opinion  that  the  judgment  of  the  court 
is  justified,  separate  findings  of  facts  and  conclusions  of  law  are 
not  indispensable.111  A  judgment  against  the  United  States  will 
be  reversed  if  the  findings  are  obscure  and  incomplete.112  No 
person  is  excluded  as  a  witness  because  he  is  a  party  or  interested, 
and  either  party  to  the  suit  has  the  same  rights  of  appeal  or 
writ  of  error  as  are  reserved  in  the  statutes  of  the  United  States, 
and  upon  the  same  conditions  and  limitations.  The  mode  of  pro- 
cedure in  claiming  and  perfecting  an  appeal  or  writ  of  error  is 
required  to  conform  in  all  respects,  as  near  as  may  be,  to  the 
statutes  and  rules  of  court  governing  appeals  and  writs  of  error 
in  like  cases.113  Where  the  record  or  the  opinion  of  the  lower 
court  shows  that  the  judgment  was  rendered  for  the  purpose  of 
submitting  the  question  on  appeal,  and  against  .the  convictions 
of  the  court,  a  pro  forma  judgment  rendered  against  the  United 

10T  24  U.  S.  Stats,  at  Large,  506.  m  United    States    v.    Tinsley,    68 

108  Chappel   v.   United    States,    34       Fed.  433,  15  C.  C.  A.  507. 

Fed.  673.  112  United  States  v.  Kelly,  89  Fed. 

109  24  U.  S.  Stats,  at  Large,  506.  946,  32  C.  C.  A.  441. 

110  Stone  v.  United  States,  164  U.  m  24  U.   S.   Stats,   at  Large,  506, 
S.   380,   17   Sup.   Ct.   Rep.   71,  41  L.  507. 


577 


JUDGMENTS  AND  APPEALS. 


[§    590 


States  by  the  court  of  claims  will  be  reversed.114  The  inquiry  is 
limited  to  the  question  whether  the  judgment  is  supported  by 
specific  findings  required  by  the  act.115 


114  United  States  v.  Gleeson,  124 
U.  S.  255,  8  Sup.  Ct.  Kep.  502,  31  L. 
ed.  421.  See  as  to  appeals,  United  ' 
States  v.  Davis,  131  U.  S.  39,  9  Sup. 
Ct.  Eep.  657,  33  L.  ed.  93;  United 
States  v.  Yukers,  60  Fed.  641,  9  C.  C. 
A.  171 ;  United  States  v.  Davis,  131  U. 
S.  36,  9  Sup.  Ct.  Kep.  657,  33  L. 
Treaties — 37 


ed.  93;  United  States  v.  Harsha, 
172  U.  S.  567,  19  Sup.  Ct.  Eep.  294, 
43  L.  ed.  556;  Chase  v.  United 
States,  155  U.  S.  489,  15  Sup.  Ct. 
Eep.  174,  39  L.  ed.  234. 

115  Chase  v.  United  States, '155  U. 
S.  500,  15  Sup.  Ct.  Eep.  174,  39  L. 
ed.  234. 


APPENDIX  I. 

EXTRADITION. 

The  following  regulations  have  been  adopted  by  the  Department 
of  State  concerning  the  extradition  of  fugitives  from  justice : 

MEMORANDUM  RELATIVE  TO  THE  EXTRADITION  OF 
FUGITIVES  FROM  THE  UNITED  STATES  IN  BRITISH 
JURISDICTION. 

Department  of  State, 

Washington,  May,  1890. 

Where  application  is  made  for  a  requisition  for  the  surrender 
of  a  fugitive  from  the  justice  of  the  United  States  in  British  juris- 
diction, it  must  be  made  to  appear — 

1.  That  one  of  the  offenses  enumerated  in  the  treaties  between  the 
United  States  and  Great  Britain  has  been  committed  within  the 
jurisdiction  of  the  United  States  or  of  some  one  of  the  States  or 
Territories. 

2.  That  the  person  charged  with  the  offense  has  sought  an  asylum 
or  been  found  within  the  British  dominions. 

All  applications  for  requisitions  should  be  addressed  to  the  Sec- 
retary of  State,  and  forwarded  to  the  Department  of  State,  accom- 
panied with  the  necessary  papers,  as  herein  stated,  and  must 
furnish  the  full  name  of  the  person  proposed  for  designation  by 
the  President  to  receive  the  prisoner  and  convey  him  to  the  United 
States.  When  the  offense  is  within  the  jurisdiction  of  the  State 
courts,  the  application  must  come  from  the  governor  of  the  State. 
When  the  offense  is  against  the  United  States,  the  application  must 
come  from  the  Attorney-General  or  the  prop'er  executive  depart- 
ment. 

It  is  stipulated  in  the  treaties  with  Great  Britain  that  extra- 
dition shall  be  granted  only  on  such  evidence  of  criminality  as, 
according  to  the  laws  of  the  place  where  the  fugitive  or  person 
charged  shall  be  found,  would  justify  his  apprehension  and  com- 

litment  for  trial  if  the  crime  or  offense  had  there  been  committed. 

(579) 


580  APPENDIX    I. 

It  is  admissible  as  constituting  such  evidence  to  produce  a  prop- 
erly certified  copy  of  an  indictment  found  against  the  fugitive  by 
a  grand  jury  or  of  any  information  made  before  an  examining 
magistrate,  accompanied  by  one  or  more  depositions  setting  forth 
as  fully  as  possible  the  circumstances  of  the  crime.  An  indictment 
alone  has  been  held  to  be  insufficient. 

By  the  fourteenth  section  of  the  English  extradition  act  of  1870, 
"  depositions  or  statements  on  oath,  taken  in  a  foreign  state,  and 
copies  of  such  original  depositions  or  statements,  and  foreign  cer- 
tiflcates  of,  or  judicial  documents  stating  the  fact  of  conviction, 
may,  if  duly  authenticated,  be  received  in  evidence  of  proceedings 
under  this  act. ' ' 

The  fifteenth  section  of  the  same  act  provides  as  follows :  1 1  For- 
eign warrants  and  depositions  or  statements  on  oath,  and  copies 
thereof,  and  certificates  of,  or  judicial  documents  stating  the  fact 
of  a  conviction,  shall  be  deemed  duly  authenticated  for  the  pur- 
poses of  this  act  if  authenticated  in  manner  provided  for  the  time 
being  by  law,  or  authenticated  as  follows:  (1)  If  the  warrant  pur- 
ports to  be  signed  by  a  judge,  magistrate,  or  officer  of  the  foreign 
state  where  the  same  was  issued;  (2)  if  the  depositions  or  state- 
ments or  the  copies  thereof  purport  to  be  certified  under  the  hand 
of  a  judge,  magistrate,  or  officer  of  the  foreign  state  where  the 
same  were  taken  to  be  the  original  depositions  or  statements,  or  to 
be  true  copies  thereof,  as  the  case  may  require;  and  (3)  if  the 
certificate  of,  or  judicial  documents  stating  the  fact  of  conviction 
purport  to  be  certified  by  a  judge,  magistrate,  or  officer  of  the 
foreign  state  where  the  conviction  took  place;  and  if  in  every 
case  the  warrants,  depositions,  statements,  copies,  certificates,  and 
judicial  documents  (as  the  case  may  be)  are  authenticated  by  the 
oath  of  some  witness  or  by  being  sealed  with  the  official  seal  of 
the  minister  of  justice,  or  some  other  minister  of  state;  and  all 
courts  of  justice,  justices  and  magistrates,  shall  take  judicial  notice 
of  such  official  seal,  and  shall  admit  the  documents  so  authenti- 
cated by  it  to  be  received  in  evidence  without  further  proof. ' ' 

If  the  fugitive  be  charged  with  the  violation  of  a  law  of  a  State 
or  Territory,  his  delivery  will  be  required  to  be  made  to  the  au- 
thorities of  such  State  or  Territory. 

If  the  offense  charged  be  a  violation  of  a  law  of  the  United 
States  (such  as  piracy,  murder  on  board  of  vessels  of  the  United 


APPENDIX    I.  581 

States,  or  in  arsenals  or  dockyards,  etc.),  the  delivery  will  be  re- 
quired to  be  made  to  the  officers  or  authorities  of  the  United  States. 
Where  the  requisition  is  made  for  an  offense  against  the  laws 
of  a  State  or  Territory,  the  expenses  attending  the  apprehension 
«Miid  delivery  of  the  fugitive  must  be  borne  by  such  State  or  Ter- 
ritory. Expenses  of  extradition  are  defrayed  by  the  United  States 
only  where  the  offense  is  against  its  own  laws. 

PROVISIONAL  ARREST. 

Applications,  both  by  telegraph  and  by  letter,  are  frequently 
made  to  this  Department  for  its  intervention  to  obtain  the  arrest 
and  provisional  detention  of  fugitives  from  justice  in  England, 
Scotland,  or  Ireland  in  advance  of  the  presentation  of  the  formal 
proofs  upon  which  a  demand  for  their  extradition  may  be  based. 
In  such  cases  the  only  manner  in  which  the  Department  can  inter- 
vene is  by  informing  the  ambassador  of  the  United  States  in 
London  of  the  facts  and  instructing  him  to  take  the  necessary 
measures.  This  the  ambassador  does  by  authorizing  some  one 
connected  with  the  embassy  to  make  complaint  on  oath  before  a 
magistrate,  in  accordance  with  the  requirements  of  the  British 
extradition  act  of  1870.  The  form  of  this  complaint  is  hereto 
annexed  as  appendix  2.  Attention  is  invited  to  its  provisions, 
and  especially  to  the  statement  deponent  is  required  to  make  that 
he  is  informed  and  believes  that  a  warrant  has  been  issued  in  the 
foreign  country  for  the  arrest  of  the  accused.  This  Department, 
when  requested  to  intervene  in  such  a  case,  should  always  be  en- 
abled to  inform  the  ambassador  that  such  a  warrant  has  been  is- 
sued, in  order  that  the  complaint  before  the  British  magistrate 
may  be  made  in  due  form  and  without  delay. 

APPENDIX   1. 

The  tenth  article  of  the  treaty  between  the  United  States  and 
Great  Britain,  concluded  August  9,  1842,  provides  for  the  sur- 
render of  criminals  for  (1)  murder,  (2)  assault  with  intent  to 
commit  murder,  (3)  piracy,  (4)  arson,  (5)  robbery,  (6)  forgery, 
(7)  the  utterance  of  forged  paper. 

The  convention  concluded  July  29,  1889,  provides  for  extra- 
dition for  the  following  additional  offenses: 

1.  Manslaughter,  when  voluntary. 


582  APPENDIX    I. 

2.  Counterfeiting  or  altering  money;  uttering  or  bringing  into 
circulation  counterfeit  or  altered  money. 

3.  Embezzlement ;  larceny ;  receiving  any  money,  valuable  secur- 
ity, or  other  property,  knowing  the  same  to  have  been  embezzled, 
stolen,  or  fraudulently  obtained. 

4.  Fraud  by  a  bailee,  banker,  agent,  factor,  trustee,  or  director 
or  member  or  officer  of  any  company,  made  criminal  by  the  laws  of 
both  countries. 

5.  Perjury,  or  subornation  of  perjury. 

6.  Rape;  abduction;  child-stealing;  kidnapping. 

7.  Burglary;  house-breaking  or  shop-breaking. 

8.  Piracy  by  the  law  of  nations. 

9.  Eevolt  or  conspiracy  to  revolt  by  two  or  more  persons  on 
board  a  ship  on  the  high  seas,  against  the  authority  of  the  master ; 
wrongfully  sinking  or  destroying  a  vessel  at  sea,  or  attempting 
to  do  so;  assaults  on  board  a  ship  on  the  high  seas,  with  intent 
to  do  grievous  bodily  harm. 

10.  Crimes  and  offenses  against  the  laws  of  both  countries  for 
the  suppression  of  slavery  and  slave-trading. 

Extradition  is  also  to  take  place  for  participation  in  any  of  the 
crimes  mentioned  in  this  convention  or  in  the  aforesaid  tenth 
article,  provided  such  participation  be  punishable  by  the  laws  of 
both  countries. 

By  the  seventh  article  of  the  convention  of  1889,  it  is  stipulated 
as  follows: 

"The  provisions  of  the  said  tenth  article  (of  the  treaty  of  1842) 
and  of  this  convention  shall  apply  to  persons  convicted  of  the  crimes 
therein  respectively  named  and  specified  whose  sentence  therefor 
shall  not  have  been  executed." 

The  eighth  article  of  the  convention  of  1889  is  as  follows :  ' '  The 
present  convention  shall  not  apply  to  any  of  the  crimes  herein 
specified  which  shall  have  been  committed,  or  to  any  conviction 
which  shall  have  been  pronounced,  prior  to  the  date  at  which  the 
convention  shall  come  into  force." 

The  ninth  article  provides  that  the  convention  "shall  come  into 
force  ten  days  after  its  publication,  in  conformity  with  the  forms 
prescribed  by  the  laws  of  the  high  contracting  parties. ' '  The  con- 
vention was  proclaimed  both  in  the  United  States  and  in  Great 
Britain  March  25,  1890,  and  thus  came  into  force  in  both  coun- 
tries April  4,  1890, 


APPENDIX   I.  583 


APPENDIX   2. 

(Form  of  information  used  in  obtaining  provisional  warrants  of 
arrest  in  the  United  Kingdom  of  Great  Britain  and  Ireland.) 

Metropolitan  Police  District,  to  wit. 

The  information  of  -  — ,  of  -  — ,  taken  on  oath 

this  -     -  day  of  -  — ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  -  — ,  at  the  Bow  Street  Police  Court,  in  the 
county  of  Middlesex,  and  within  the  Metropolitan  police  district, 
before  me,  the  undersigned,  one  of  the  magistrates  of  the  police 
courts  of  the  metropolis,  sitting  at  the  police  court  aforesaid,  who 
saith  that  —  — ,  late  of  -  — ,  is  accused  [or  convicted] 

of  the  commission  of  the  crime  of  -  — ,  within  the  jurisdic- 

tion of  -  — ,  and  now  suspected  of  being  in  the  United 

Kingdom.     I  make  this  application  on  behalf  of  the  - 
Government. 

I  produce  -  — . 

I  am  informed  and  verily  believe  that  a  warrant  -  has 

been  issued  in  -  -  for  the  arrest  of  the  accused;  that  the 
said  Government  will  demand  h —  extradition  in  due  course,  and 
that  there  are  reasonable  grounds  for  supposing  the  accused  may 
escape  during  the  time  necessary  to  present  the  diplomatic  requisi- 
tion for  h —  surrender,  and  I  therefore  pray  that  a  provisional 
warrant  may  issue  under  the  provisions  of  33  and  34  V.,  c.  52,  s.  8. 

Sworn  before  me,  the  day  and  year  first  above  mentioned,  at  the 
police  court  aforesaid. 

CERTIFICATE. 

I,  -  — ,  Governor  of  -  — ,  do  hereby  certify  that 

the  accompanying  application  presented  by  me  on  behalf  of  the 

—  of  -  — ,  for  the  extradition  of  -  — ,  from 

— ,   is  made   solely  for  the  purpose   of  securing  his   trial 

and  punishment  for  the  offense  of  -  — ,  and  not  in  order 

to  enforce  the  collection  of  a  debt,  or  to  avoid  the  penalty  of  a 

bail  bond,  or  for  any  private  purpose  whatever,  and  that  if  the 

application  be  granted  the  criminal  proceedings  shall  not  be  used 

for  any  of  said  purposes. 


Governor  of 


584  APPENDIX    I. 

PROVISIONAL  DETENTION  OF  FUGITIVES    FROM    JUS- 
TICE IN  GREAT  BRITAIN. 

Department  of  State, 
Washington,  D.  C.,  March  17,  1891. 

The  minister  of  the  United  States  in  London  informs  the  De- 
partment that  inquiries  are  frequently  made  at  the  legation  by 
officers  of  the  London  police  who  have  received  telegrams  from 
police  authorities  or  detective  agencies  in  the  United  States  asking 
for  the  arrest  and  detention  of  alleged  fugitives  from  justice. 

In  Great  Britain  a  provisional  warrant  of  arrest  of  a  fugitive 
from  justice  may  be  obtained  from  a  judicial  magistrate,  but  it  is 
required  that  the  application  for  the  warrant  shall  have  the  sanc- 
tion of  the  foreign  government.  When,  therefore,  the  London 
police  receive  such  a  telegram  as  has  been  described,  they  at  once 
apply  to  the  minister  of  the  United  States  to  ascertain  whether  he 
will  authorize  proceedings  before  a  magistrate  to  be  taken. 

Ministers  of  the  United  States  are  hot  authorized  to  request  or 
to  sanction  requests  for  the  arrest  of  fugitives  from  justice  with- 
out the  instructions  of  this  Department.  When,  therefore,  the 
minister  of  the  United  States  in  London  is  asked  to  sanction  a  com- 
plaint before  a  magistrate,  based  upon  a  request  made  by  police 
authorities  or  detective  agencies  in  this  country,  he  is  obliged  to 
refuse. 

The  proper  course  in  such  a  case  is  for  the  authorities  of  the 
particular  district  in  which  the  offense  was  committed  to  apply  to 
the  governor  of  the  State  in  which  such  district  is  situated,  through 
whom  the  application  for  the  intervention  of  the  United  States  or 
of  its  representatives  must  come.  The  only  exception  to  this  rule 
is  the  city  and  county  of  New  York,  the  prosecuting  attorney  of 
which  is  permitted  to  apply  for  provisional  detention  directly  to 
this  Department,  although  the  formal  application  for  a  requisition 
for  surrender  must  come  through  the  governor  of  the  State. 

In  applying  to  this  Department  to  secure  the  provisional  deten- 
tion of  a  fugitive  in  Great  Britain,  the  charge  of  crime  must  be 
briefly  and  clearly  stated,  and,  unless  there  is  some  witness  in 
Great  Britain  to  identify  the  fugitive,  a  description  of  him  should 
be  furnished  either  to  this  Department  or  to  the  London  police.  A 
positive  assurance  must  also  be  given  to  this  Department  that  a 


APPENDIX    I.  585 

warrant  has  been  issued  for  his  arrest  at  the  place  where  the  crime 
was  committed.  This  is  a  necessary  allegation  under  the  British 
statute. 


MEMORANDUM  RELATIVE  TO  APPLICATIONS  FOR  THE 
EXTRADITION  FROM  FOREIGN  COUNTRIES  OF  FUGI- 
TIVES FROM  JUSTICE. 

Department  of  State, 

Washington,  October,  1892. 

Extradition  will  be  asked  only  from  a  government  with  which 
the  United  States  has  an  extradition  treaty,  and  only  for  an  offense 
specified  in  the  treaty. 

All  applications  for  requisitions  should  be  addressed  to  the  Sec- 
retary of  State,  accompanied  by  the  necessary  papers  as  herein 
stated.*  When  extradition  is  sought  for  an  offense  within  the 
jurisdiction  of  the  State  or  Territorial  courts,  the  application  must 
come  from  the  governor  of  the  State  or  Territory.  When  the 
offense  is  against  the  United  States,  the  application  should  come 
from  the  Attorney-General. 

In  every  application  for  a  requisition  it  must  be  made  to  appear 
that'  one  of  the  offenses  enumerated  in  the  extradition  treaty  be- 
tween the  United  States  and  the  government  from  which  extradi- 
tion is  sought  has  been  committed  within  the  jurisdiction  of  the 
United  States,  or  of  some  one  of  the  States  or  Territories,  and  that 
the  person  charged  therewith  is  believed  to  have  sought  an  asylum 
or  has  been  found  within  the  dominions  of  such  foreign  govern- 
ment. 

The  extradition  treaties  of  the  United  States  ordinarily  provide 
that  the  surrender  of  a  fugitive  shall  be  granted  only  upon  such 
evidence  of  criminality  as,  according  to  the  laws  of  the  place  where 
the  fugitive  or  person  so  charged  shall  be  found,  would  justify  his 
or  her  commitment  for  trial  if  the  crime  or  offense  had  been  there 
committed. 

If  the  person  whose  extradition  is  desired  has  been  convicted  of 
a  crime  or  offense  and  escaped  thereafter,  a  duly  authenticated 


*The  only  exception  is  found  in  the  treaty  with  Mexico,  under  which,  in 
the  case  of  crimes  committed  in  the  frontier  States  or  Territories,  requi- 
sitions may  be  made  directly  by  the  proper  authorities  of  the  State  or 
Territory.  (Article  2,  treaty  with  Mexico,  concluded  December  11,  1861.) 


586  APPENDIX    I. 

copy  of  the  record  of  conviction  and  sentence  of  the  court  is  or- 
dinarily sufficient. 

If  the  fugitive  has  not  been  convicted,  but  is  merely  charged 
with  crime,  a  duly  authenticated  copy  of  the  indictment  or  informa- 
tion, if  any,  and  of  the  warrant  of  arrest  and  return  thereto, 
accompanied  by  a  copy  of  the  evidence  upon  which  the  indictment 
was  found,  or  the  warrant  of  arrest  issued,  or  by  original  deposi- 
tions setting  forth  as  fully  as  possible  the  circumstances  of  the 
crime,  are  usually  necessary.  Many  of  our  treaties  require  the 
production  of  a  duly  authenticated  copy  of  the  warrant  of  arrest 
in  this  country;  but  an  indictment,  information,  or  warrant  of 
arrest  alone,  without  the  accompanying  proofs,  is  not  ordinarily 
sufficient.  It  is  desirable  to  make  out  as  strong  a  case  as  possible, 
in  order  to  meet  the  contingencies  of  the  local  requirements  at  the 
place  of  arrest. 

If  the  extradition  of  the  fugitive  is  sought  for  several  offenses, 
copies  of  the  several  convictions,  indictments,  or  informations  and 
of  the  documents  in  support  of  each  should  be  furnished. 

Application  for  the  extradition  of  a  fugitive  should  state  his  full 
name,  if  known,  and  his  alias,  if  any,  the  offense  or  offenses  in  the 
language  of  the  treaty  upon  which  his  extradition  is  desired,  and 
the  full  name  of  the  person  proposed  for  designation  by  the  Presi- 
dent to  receive  and  convey  the  prisoner  to  the  United  States. 

As  the  application  proper  is  desired  solely  by  the  Department  as 
a  basis  for  its  action,  and  is  retained  by  it,  it  is  not  necessary  that 
it  should  be  attached  to  the  evidence. 

Copies  of  the  record  of  conviction,  or  of  the  indictment,  or  in- 
formation, and  of  the  warrant  of  arrest,  and  the  other  papers  and 
documents  going  to  make  up  the  evidence  are  required  by  the  De- 
partment, in  the  first  instance,  as  a  basis  for  requesting  the  sur- 
render of  the  fugitive,  but  chiefly  in  order  that  they  may  be  duly 
authenticated  under  the  seal  of  the  Department,  so  as  to  make  them 
receivable  as  evidence  where  the  fugitive  is  arrested  upon  the 
question  of  his  surrender. 

Copies  of  all  papers  going  to  make  up  the  evidence,  transmitted 
as  herein  required,  including  the  record  of  conviction,  or  the  in- 
dictment, or  information,  and  the  *  warrant  of  arrest,  must  be 
duly  certified  and  then  authenticated  under  the  great  seal  of  the 
State  making  the  application  or  the  seal  of  the  Department  of 
Justice,  as  the  case  may  be ;  and  this  Department  will  authenticate 


APPENDIX    I.  587 

the  seal  of  the  State  or  of  the  Department  of  Justice.  For  ex- 
ample, if  a  deposition  is  made  before  a  justice  of  the  peace,  the 
official  character  of  the  justice  and  his  authority  to  administer 
oaths  should  be  attested  by  the  county  clerk  or  other  superior  cer- 
tifying officer ;  the  certificate  of  the  county  clerk  should  be  authen- 
ticated by  the  governor  or  secretary  of  state  under  the  seal  of  the 
State,  and  the  latter  will  be  authenticated  by  this  Department.  If 
there  is  but  one  authentication,  it  should  plainly  cover  all  the 
papers  attached. 

All  of  the  papers  herein  required  in  the  way  of  evidence  must 
l)e  transmitted  in  duplicate,  one  copy  to  be  retained  in  the  files  of 
the  Department,  and  the  other,  duly  authenticated  by  the  Secre- 
tary of  State,  will  be  returned  with  the  President 's  warrant,  for  the 
use  of  the  agent  who  may  be  designated  to  receive  the  fugitive.  As 
the  governor  of  the  State,  or  the  Department  of  Justice,  also  or- 
dinarily requires  a  copy,  prosecuting  attorneys  should  have  all 
papers  made  in  triplicate. 

By  the  practice  of  some  of  the  countries  with  which  the  United 
States  has  treaties,  in  order  to  entitle  copies  of  depositions  to  be 
received  in  evidence  the  party  producing  them  is  required  to  de- 
clare under  oath  that  they  are  true  copies  of  the  original  deposi- 
tions. It  is  desirable,  therefore,  that  such  agent,  either  from  a 
comparison  of  the  copies  with  the  originals  or  from  having  been 
present  at  the  attestations  of  the  copies,  should  be  prepared  to 
make  such  declaration.  When  the  original  depositions  are  for- 
warded, such  declaration  is  not  required. 

Applications  by  telegraph  or  letter  are  frequently  made  to  this 
Department  for  its  intervention  to  obtain  the  provisional  arrest 
and  detention  of  fugitives  in  foreign  countries  in  advance  of  the 
presentation  of  the  formal  proofs  upon  which  a  demand  for  their 
extradition  may  be  based.  Such  applications  should  state  specifi- 
cally the  name  of  the  fugitive,  the  offense  with  which  he  is  charged, 
the  circumstances  of  the  crime  as  fully  as  possible,  and  a  descrip- 
tion and  identification  of  the  accused.  It  is  always  helpful  to 
show  that  an  indictment  has  been  found  or  a  warrant  of  arrest 
has  been  issued  for  the  apprehension  of  the  accused.  In  Great 
Britain  the  practice  makes  it  essential  that  it  shall  appear  that  a 
warrant  of  arrest  has  been  issued  in  this  country.* 

*For  fuller  information  with  respect  to  procedure  in  cases  of  provisional 
arrest  within  British  jurisdiction,  see  Department's  memorandum  of  May, 
1890. 


588  APPENDIX    I. 

Care  should  be  taken  to  observe  the  provisions  of  the  particular 
treaty  under  which  extradition  is  sought,  and  to  comply  with  any 
special  provisions  contained  therein.  The  extradition  treaties  of 
the  United  States  may  be  found  in  the  several  volumes  of  the  Stat- 
utes at  Large,  in  the  "Revised  Statutes  of  the  United  States  relat- 
ing to  the  District  of  Columbia  and  Post  Roads,  together  with 
Public  Treaties  in  force  on  the  1st  day  of  December,  1873,"  and 
in  the  volume  of  Public  Treaties,  1887.  Copies  of  particular 
treaties  will  be  furnished  by  the  Department  upon  application. 

If  the  offense  charged  be  a  violation  of  a  law  of  a  State  or  Ter- 
ritory, the  agent  authorized  by  the  President  to  receive  the  fugitive 
will  be  required  to  deliver  him  to  the  authorities  of  such  State  or 
Territory.  If  the  offense  charged  be  a  violation  of  a  law  of  the 
United  States,  the  agent  will  be  required  to  deliver  the  fugitive 
to  the  proper  authorities  of  the  United  States  for  the  judicial 
district  having  jurisdiction  of  the  offense. 

Where  the  requisition  is  made  for  an  offense  against  the  laws 
of  a  State  or  Territory,  the  expenses  attending  the  apprehension 
and  delivery  of  the  fugitive  must  be  borne  by  such  State  or  Ter- 
ritory. Expenses  of  extradition  are  defrayed  by  the  United  States 
only  when  the  offense  is  against  its  own  laws. 

A  strict  compliance  with  these  requirements  may  save  much 
delay  and  expense  to  the  party  seeking  the  extradition  of  a  fugitive 
criminal. 

Department  of  State, 
Washington,  March  26,  1900. 
His  Excellency 

The  Governor  of , 


Sir:  The  extradition  from  Mexico  of  fugitives  from  the  justice 
of  the  United  States  has  been  the  subject  of  more  or  less  mis- 
understanding between  the  two  Governments ;  and  the  recent  fail- 
ure of  the  Mexican  Government  to  surrender,  at  the  request  of  the 
governor  of  Texas,  Leonardo  Gonzales,  accused  of  murder  in  that 
State,  gave  occasion  for  the  careful  study  and  consideration  of  the 
question  between  the  Mexican  Ambassador  and  the  Department  of 
State. 

It  appears  that  the  failure  to  grant  the  extradition  requested 
in  some  cases — and  especially  in  the  Gonzales  case — was  due,  not 
to  any  motive  of  the  Mexican  Government  to  refuse  the  request  on 


AI'J'KNDIX    I. 

the  ground  of  the  Mexican  citi/enship  of  the  accused,  but  beeausc 
1li«-  demanding  authorities  h;id  not  sufficiently  complied   with  06C 
tioh  1  of  Article  III  of  the  treaty. 

The  proceedings  in  the  Gonzales  case  may  be  taken  as  illustrative 
of  alleged  defects  in  the  observance  of  necessary  formalities,  and 
for  that  reason  a  memorandum  of  the  case  is  enclosed  herewith, 
marked  A. 

With  a  view  to  arriving  at  a  more  distinct  understanding  of  the 
requirements  and  formalities  which,  under  the  treaty,  are  required 
of  the  United  States  authorities  in  such  cases,  and  the  observance 
of  which  will  facilitate  the  extradition  of  accused  persons,  the 
Department  addressed  a  note,  under  date  of  January  12  ultimo, 
to  the  Mexican  Ambassador  (copy  enclosed,  marked  B),  inviting  a 
nference  on  the  subject. 

t  the  conference  the  Ambassador  explained  the  laws  of  the 
exican  Republic  bearing  on  the  question,  and  stated  that  the  laws 
of  its  several  States  are  substantially  the  same  as  those  of  the 
:ican  Federal  Government.     He  afterwards  furnished  the  De- 
partment a  memorandum  of  the  conference  (copy  enclosed,  marked 
f,  and  also  a  copy  in  Spanish  and  English  of  the  said  provisions 
the  Mexican  code  (copy  enclosed,  marked  D).     The  observance 
the  precepts  of  the  said  laws  on  the  part  of  the  demanding 
authorities  will,  it  is  believed,  lead  to  satisfactory  results  in  the 
future. 

It  may  be  further  observed  that  within  the  experience  of  the 
Department,  the  corresponding  requirements  of  our  laws  on  the 
Mexican  Government  in  such  cases  have  been  by  it  scrupulously 
pursued  in  those  cases  where  extradition  has  been  sought  by  it 
through  the  diplomatic  channels. 

I  also  enclose  printed  leaflet  copy  of  the  extradition  treaty  in 
force  between  the  two  Governments. 
I  have  the  honor  to  be,  Sir, 

Your  obedient  servant, 

JOHN  HAY. 
closures : 

Memorandum  on  Gonzales  case. 
To  Mexican  Ambassador,  No.  64,  January  12,  1900. 
Conference  with  Mexican  Ambassador. 
Copy  of  certain  articles  of  Mexican  code. 
Extradition  treaty  between  the  United  States  and  Mexico. 


590  APPENDIX    I. 


Memorandum  on  the  Gonzales  case. 

It  appears  from  Mr.  Clayton's  Despatch  No.  415,  November  22 
ultimo,  and  in  Governor  Sayers '  letter  of  November  28  ultimo,  with 
their  enclosures,  that  the  request  for  the  extradition  of  Leonardo 
Gonzales  was  based  upon  the  affidavit  charging  him  with  the  crime 
of  murder  of  Prisciliana  Laura,  and  upon  a  deposition  of  H.  C, 
Crosby.  It  appears  that  extradition  was  refused  by  the  Mexican 
Government  on  the  ground  that  the  demand  was  founded  upon  the 
warrant  issued  by  the  clerk  of  Pecos  County  and  on  said  dep- 
osition, and  that  there  was  no  evidence  submitted  to  show  legally 
the  existence  of  the  corpus  delicti  of  homicide;  that  no  evidence 
of  the  dead  body  was  given  by  competent  authority,  nor  that  an 
authoritative  examination  was  made  of  the  wounds  inflicted  upon 
Prisciliana  Laura,  nor  that  an  autopsy  was  held  upon  the  dead 
body  to  prove  the  cause  of  death,  indispensable  requisites  for  the 
imposition  of  punishment  according  to  articles  544,  545,  and  546 
of  the  Mexican  penal  code;  and  that  the  deposition  of  said  Crosby 
failed  to  state  expressly  the  place  or  town  of  Pecos  County  where 
the  homicide  was  committed,  and  was  wanting  in  other  circum- 
stances to  raise  the  presumption  of  guilt  against  Gonzales.  A  fur- 
ther ground  of  refusal  was  the  want  of  sufficient  authentication  of 
the  extradition  proceedings  had  in  Texas  as  required  by  Article 
VIII  and  IX  of  the  treaty  and  because  the  Mexican  authorities 
were  not  competent  to  take  jurisdiction  of  the  case  for  lack  of 
certain  requisites  enumerated  in  article  186  of  the  penal  code  in 
force  in  Coahuila  and  in  the  Federal  District;  that  under  the 
treaty,  extradition  cannot  be  granted  where  the  proof  of  crime 
presented  by  the  requesting  party  would  not  justify  the  apprehen- 
sion and  the  putting  on  trial  of  the  accused  if  the  crime  had  been 
there  committed. 

B 

The  Secretary  of  State  to  the  Mexican  Ambassador. 
No.  64.]  Department  of  State, 

Washington,  January  12,  1900. 

Excellency:  Referring  to  your  memorandum  in  relation  to  the 
provisional  detention  in  the  United  States,  under  the  extradition 


APPENDIX    I. 


591 


treaty,  of  fugitives  from  justice  from  Mexico,  I  should  be  pleased 
if  you  would  call  at  the  Department  at  your  convenience,  in  order 
that  we  may  confer  upon  the  subject. 

I  should  be  glad  to  consider  with  you  at  the  same  time  the  ques- 
tion of  the  surrender,  under  Article  IV  of  the  treaty,  of  the  citizens 
of  the  country  from  which  the  surrender  is  requested  for  crimes 
committed  in  the  other.  The  President  of  the  United  States,  in 
the  exercise  of  his  discretion,  recently  permitted  the  extradition  of 
Mrs.  Mattie  Rich,  a  citizen  of  the  United  States,  at  the  request  of 
Mexico ;  while,  on  the  other  hand,  President  Diaz  recently  refused 
to  permit  the  surrender  of  Leonardo  Gonzales.  Inasmuch  as  the 
request  was  made  in  this  case  by  the  governor  of  Texas  on  the 
governor  of  Coahuila,  the  papers  and  evidence  in  the  case  did  not 
pass  through  the  Department  of  State,  and  it  refrains  from  ex- 
pressing any  opinion  on  the  question  whether  there  was,  as  de- 
cided by  the  Mexican  Government,  an  entire  want  of  proof  of  the 
corpus  delicti,  without  which  extradition  would  properly  be  refused 
in  any  case.  But  there  was  apparently  another  ground  of  the  de- 
cision of  the  Mexican  Government  which,  if  correctly  understood 
by  the  Department  and  rigidly  adhered  to  in  the  future,  would 
endanger  the  successful  operation  of  this  clause  of  the  treaty.  It 
seems  to  be  implied  in  said  decision  that  it  is,  under  the  laws  of 
Mexico,  an  indispensable  prerequisite  to  the  arrest  and  commitment 
for  trial  of  anyone  accused  of  murder  that  there  be  technical  proof 
of  the  crime  by  a  coroner's  inquest  and  by  an  autopsy,  so  that 
the  fact  of  death  must  be  established  by  evidence  of  officials  charged 
with  the  duty  of  holding  such  inquest  and  the  cause  of  it  estab- 
lished by  scientific  evidence  of  physicians  holding  the  autopsy. 
Under  the  laws  of  the  United  States  the  fact  of  death,  as  well  as 
the  cause  of  it,  must  be  proved  in  order  to  warant  conviction;  but 
no  particular  form  of  proof  is  necessary  for  the  purpose  of  arrest 
and  commitment  for  trial,  it  being  necessary  only  to  show  prima 
facie  or  probable  cause.  Nor  are  those  formal  and  technical  proofs 
indispensable  to  conviction.  It  not  unfrequently  happens,  in  cases 
of  murder,  that  the  guilt  of  the  accused  can  only  be  shown  by 
circumstantial  evidence,  and  no  particular  species  of  evidence  is 
formally  prescribed  as  indispensable  to  conviction.  There  is  only 
one  indispensable  prerequisite,  namely,  the  evidence  must  show  the 
crime  and  the  guilt  of  the  accused  beyond  reasonable  doubt. 


592  APPENDIX    I. 

One  government  can  hardly  be  expected  to  surrender  its  citizens 
on  substantial  proof  of  guilt,  if  the  other  government  refuses  to 
do  so  simply  for  want  of  technical  proof. 

It  is  hoped  that  the  conference  suggested  may  result  in  a  mutu- 
ally satisfactory  understanding  of  the  two  Governments  as  to  the 
working  of  Articles  VIII  and  X  and  of  Article  IV  of  the  treaty. 

Accept,  etc. 

JOHN  HAY. 

C 

Report  of  a  conference  between  the  Mexican  Ambassador  and  the 
Solicitor  for  the  Department  of  State. 

At  10  o'clock  a.  m.  on  the  25th  of  January,  1900,  the  Mexican 
Ambassador  appeared  at  the  office  of  Mr.  William  L.  Penfield, 
Solicitor  for  the  Department  of  State,  for  the  purpose  of  holding 
Avith  him  a  conference,  which  His  Excellency  John  Hay  deemed 
expedient  in  order  to  agree  on  certain  fixed  rules  that  might  facili- 
tate the  practical  application  of  some  articles  of  the  extradition 
treaty  in  force  between  Mexico  and  the  United  States,  owing  to 
certain  differences  of  opinion  between  the  two  contracting  par- 
ties which  had  arisen  in  recent  extradition  cases  presented  by  the 
former  and  the  latter  nation,  respectively. 

The  conference  having  commenced  and  the  points  of  discussion 
having  been  determined,  the  same  being  comprised  in  Article  IV, 
paragraph  3  of  Article  VIII,  and  Article  X  of  the  treaty,  Mr. 
Penfield  expressed  the  desire  to  know  whether  in  all  cases  of  homi- 
cide it  was  necessary,  in  conformity  with  the  laws  of  Mexico,  in 
order  to  proceed  with  the  arrest  and  commitment  for  trial  of  a 
defendant,  to  establish  the  existence  of  the  corpus  delicti  by  means 
of  technical  proof  of  the  crime,  as  might  be  inferred  from  the 
decision  rendered  by  the  Mexican  Government  on  November  15, 
1899,  when  it  denied  the  demand  for  the  extradition  of  Leonardo 
Gonzales;  whether  such  proof  can  be  substituted  by  other  proof, 
when  it  is  impossible  or  difficult  to  obtain  expert  testimony;  and 
whether  if  the  extradition,  once  denied  through  lack  of  proof, 
might  be  granted  afterwards  upon  presentation  of  perfected  proof. 
He  made  reference  to  said  Gonzales  case  and  remarked  that  al- 
though the  proofs  submitted  when  that  extradition  was  demanded! 
might  be  considered  insufficient,  later  on  other  proofs  had  been 


APPENDIX    I.  593 

adduced,  consisting  of  the  testimony  of  eyewitnesses,  which 
strengthened  the  first  proof  submitted;  and  he  stated  that  the  im- 
pression the  people  and  some  State  officer  of  Texas  had  with  ref- 
erence to  said  decision  was  to  the  effect  that  the  fact  that  Leon- 
ardo Gonzales  was  a  Mexican  had  had  a  great  deal  to  do  in  the 
way  such  decision  was  rendered,  although  the  United  States  Gov- 
ernment had  delivered  up  Mattie  Rich,  an  American  citizen,  to  the 
Mexican  authorities,  thereby  establishing  a  precedent  which  he 
hoped  would  he  followed  by  the  latter. 

Mr.  Azpiroz  replied  in  the  following  terms: 

"The  extradition  of  Leonardo  Gonzales  was  refused  solely  on 
the  ground  that  no  sufficient  proofs  had  been  presented  as  to  the 
existence  of  the  corpus  delicti  to  the  Mexican  Government.  It  does 
not  appear  that  the  fact  that  the  defendant  was  a  Mexican  citizen 
had,  directly  or  indirectly,  any  influence  in  the  decision. 

"It  is  to  be  presumed  that  the  Mexican  Government  would  have 
been  willing  to  grant  the  extradition  by  availing  itself  of  the  dis- 
cretional power  that  the  treaty  between  Mexico  and  the  United 
States  of  February  22,  1899,  gives  to  both  of  the  high  contract- 
ing parties  to  deliver  up  its  own  citizens,  had  the  existence  of 
the  corpus  delicti  of  the  homicide  charged  to  Gonzales  been  proved, 
in  view  of  the  desire  it  has  to  put  into  practical  operation  the 
ends  that  both  Governments  had  contemplated  when  they  entered 
'into  that  treaty,  and  of  the  example  recently  given  by  the  United 
States  when  it  delivered  up  Mattie  Rich.  The  Mexican  Govern- 
ment, however,  was  not  able  to  follow  this  precedent  in  the  Gon- 
zales case,  because  the  facts  in  the  latter  case  were  different  from 
those  in  the  former,  and  had.  of  course,  to  lead  to  different  results. 
As  a  matter  of  fact,  the  corpus  delicti  in  the  case  of  Mrs.  Rich 
had  been  proved  in  conformity  with  the  laws  of  Texas,  and  the 
only  thing  left  for  the  discretionary  decision  of  this  Government 
was  whether  it  should  or  should  not  surrender  her,  owing  to  her 
citizenship ;  whilst  in  the  case  of  Gonzales  there  was  wanting  suffi- 
cient proof  of  the  corpus  delicti,  which  was  indispensable  for  his 
arrest  and  commitment  for  trial,  in  the  supposition  that  the  crime 
imputed  to  him  had  been  committed  in  Mexico,  since  the  treaty 
itself,  in  its  Article  III,  paragraph  1,  prohibits  the  delivery  of  the 
accused  in  such  a  case. 

Treaties— 38 


594  APPENDIX    I. 

"The  proof  of  the  guilt  of  Leonardo  Gonzales,  in  order  to  justify 
his  arrest  and  commitment  for  trial,  had  to  conform  to  the  laws 
of  tie  State  of  Coahuila,  where  the  defendant  was  found,  and  to 
to  tlo  federal  law  on  extradition  approved  May  19,  1897,  which 
should  be  complied  with  in  everything  not  otherwise  provided 
for  l»y  the  treaty.  According  to  the  code  of  penal  procedure  of 
Coabuila  [a  copy  of  the  articles  relative  to  the  matter  under  dis- 
cuss? m,  together  with  an  English  translation,  having  been  deliv- 
ered by  Mr.  Azpiroz  to  Mr.  Penfield],  which  is  substantially  on 
thifr  point  the  same  as  the  laws  of  criminal  procedure  in  force  in 
the  other  States,  in  the  Federal  District,  in  the  Territories  of  the 
M(  tican  Union,  'the  basis  for  a  criminal  proceeding  is  the  proof 
of  the  existence  of  an  act  or  that  of  an  omission,  which  the  law 
co  'isiders  to  be  a  delict ;  without  such  proof  no  further  proceedings 
ca.i  be  had.' 

"In  cases  of  homicide  proof  must  be  presented  of  the  fact  that 
o^te  person  had  been  killed  by  another,  and  furthermore  there 
must  be  proof  that  some  individual  has  been  the  real  or  at  least 
lie  suspected  slayer,  so  that  he  may  be  arrested  and  committed 
tor  trial  for  that  crime. 

''The  law  indeed  requires,  in  order  that  there  may  be  sufficient 
proof  of  the  corpus  delicti,  that  an  autopsy  of  the  corpse  may  be 
had,  if  that  is  possible;  but  if  it  could  not  be  done,  secondary 
proof  may  be  produced,  although  even  then  the  law  requires  that 
such  proof  may  be  passed  upon  by  experts ;  and  it  is  only  when  it 
is  absolutely  impossible  to  obtain  the  opinion  of  experts  that  it 
requires  that  such  proof  may  be  substituted  by  the  testimony  of 
witnesses  who  may  have  seen  the  corpse  and  the  hurts,  or  that  in 
some  other  way  may  know  the  facts  regarding  the  crime,  stating 
the  circumstances  which  are  indispensable  to  produce  the  certainty, 
or  a  great  probability,  that  a  homicide  has  been  committed,  and  at 
least  a  suspicion  as  to  who  may  have  caused  it. 

' '  In  fine,  the  documents  that  must  be  furnished  with  the  requisi- 
tion (for  extradition)  must  prove  the  existence  of  the  corpus  delicti 
and  furnish  evidence  of  the  identity  and  at  least  presumptions  of 
the  guilt  of  the  person  whose  extradition  is  demanded,  in  such  a 
manner  that  his  arrest  and  prosecution  might  be  ordered,  in  con- 
formity with  the  laws  of  the  Republic,  had  he  committed  the 
offense  within  its  territory. 


APPENDIX    I.  595 

' '  Since  the  local  law  establishes  the  testimony  of  experts  as  direct 
evidence,  and  that  of  simple  witnesses  as  secondary,  it  is  evident 
that  secondary  evidence  is  not  sufficient  until  it  is  shown  in  some 

;ay  that  it  was  impossible  to  obtain  direct  evidence. 

The  foregoing  prescriptions  of  Mexican  law  in  criminal  pro- 
cedure are  substantially  in  accord  with  the  common  law  that  gen- 

rally  is  enforced  by  the  courts  of  the  United  States  of  America. 
'It  happens  very  often  that  the  place  where  the  corpse  should 
found  is  not  known,  when  such  corpse  has  been  destroyed  or 
its  exhumation  is  impracticable,  or  there  is  no  surgeon  to  make 
the  autopsy ;  but  it  is  scarcely  to  be  supposed  that  there  could 
be  any  place  in  the  United  States  where  no  physician,  or  at  least 
a  practitioner  without  diploma,  might  be  found.  Nevertheless, 
the  laws  of  Mexico  even  provide  for  such  a  remote  case,  and  lay 
down  easy  and  reasonable  rules  for  the  substitution  of  expert  tes- 
timony. Whenever  these  prescriptions  are  complied  with,  as  well 
as  the  other  requisites  established  in  the  treaty  with  the  United 
States  for  the  extradition  of  fugitives  from  justice  of  this  country, 
the  Mexican  authorities  who  are  required  under  said  treaty  to 
decide  extradition  cases  will  give  their  decisions  boiia  fide,  guiding 
themselves  by  the  desire  to  facilitate  the  trial  of  criminals  by 
competent  courts,  the  fact  that  the  accused  is  a  Mexican  citizen 
not  being  sufficient  inducement  to  make  them  deviate  from  that 
purpose. ' ' 

The  Ambassador  added: 

"I  find  no  legal  objection  against  the  presentation  of  the  de- 
mand for  extradition  of  a  defendant  a  second  time,  if  the  proof 
that  should  accompany  it,  and  owing  to  whose  deficiency  it  was 
rejected,  is  perfected.  In  the  special  case  of  Leonardo  Gonzales 
other  testimony  was  added  to  that  which  accompanied  the  demand 
for  extradition,  but  only  after  such  demand  had  been  denied,  so 
that  the  Mexican  Government  did  not  even  have  the  opportunity 
to  know  it  when  it  rendered  its  decision." 

Mr.  Penfield  inquired  whether  the  Mexican  Government  would 
grant  the  extradition  of  Gonzales  upon  presentation  of  the  new 
testimony  which  served  to  fortify  that  formerly  given,  in  case  that 
it  should  be  sent  with  a  new  demand  from  the  governor  of  Texas. 

The  Ambassador  answered  that  in  his  personal  opinion,  formed 
upon  examination  of  the  case,  the  new  proof  would  not  be  consid- 


596  APPENDIX    I. 

ered  satisfactory.  "It  is  not  yet,"  he  added,  "the  proof  re- 
quired under  the  laws  of  Coahuila,  nor  has  it  been  shown  that  it 
had  been  impossible  to  produce  such  a  proof.  It  is  a  matter  to 
strongly  arouse  our  attention  that  the  new  proof,  which  is  sup- 
posed to  have  existed  at  the  same  time  as  the  facts  to  be  proved 
thereby,  had  been  omitted  when  the  demand  was  made,  should  have 
been  substituted  by  another  of  even  less  value,  and  should  not 
have  been  presented  during  the  time  taken  for  the  proceedings  had 
to  arrive  at  a  decision  of  the  case,  which  proceedings  lasted  very 
nearly  four  months;  notwithstanding  the  fact  that  it  should  have 
been  ready  and  that  it  was  deemed  decisive  of  the  case,  and  that 
when  the  additional  proof  was  sent  to  Mexico  so  inopportunely  no 
explanation  was  given  as  to  the  delay  occurring  in  its  transmis- 
sion. Furthermore,  it  should  be  said  that  the  testimony  consists 
of  the  depositions  of  two  children,  one  14  and  the  other  12  years 
of  age,  which  are  considered  as  among  the  weakest  testimony  that 
can  be  presented  in  conformity  with  the  law." 

Regarding  the  "authenticated  copy  of  the  law  of  the  demand- 
ing party,  which  defines  the  crime  and  establishes  its  punishment, ' ' 
that  is  required  under  the  third  paragraph  of  Article  VIII  of  the 
treaty,  the  Ambassador  agreed  with  Mr.  Penfield  that  said  requisite 
had  been  prescribed  in  extradition  cases  only  for  crimes  specified 
in  sections  19  and  21  of  Article  II  of  the  treaty. 

Finally,  they  both  were  of  the  opinion  that  Article  I  devolves 
the  surrender  of  the  accused  to  each  one  of  the  contracting  Gov- 
ernments, respectively;  that  Article  VIII  prescribes  that  the  de- 
mands made  in  conformity  thereto  should  be  presented  by  the 
diplomatic  agents,  and  that  only  in  their  absence  by  the  superior 
consular  officers  of  each  one  of  the  contracting  parties,  or  in  the 
cases  mentioned  in  Article  IX,  by  the  first  civil,  military,  or  judi- 
cial authority  of  the  proper  frontier  State  or  Territory,  and  that 
in  conformity  with  those  prescriptions  Article  X  requires  that  the 
diplomatic  channel  should  be  resorted  to  in  order  to  obtain  the  pro- 
visional arrest  of  the  accused  and  his  safe  custody,  while  the  demand 
for  his  extradition  is  completed,  and  that  each  of  the  contracting 
Governments  are  required  to  endeavor  to  render  efficient  these  pre- 
cautionary measures ;  or  in  other  words,  that  all  demands  in  extra- 
dition cases  should  be  addressed  by  one  of  the  two  contracting 
Governments  to  the  other  through  the  channel  of  its  respective 


APPENDIX    I. 


597 


diplomatic  agent,  excepting  in  the  cases  specified  in  the  first  para- 
graph of  Article  VIII  and  in  Article  IX  of  the  treaty. 

.Mr.  Penfield  asked  Mr.  Azpiroz  to  prepare  a  draft  containing 
instructions  for  the  governors  of  the  frontier  States  and  Territory 
of  this  Republic  in  such  way  as  suitably  to  facilitate  their  com- 
pliance with  the  provisions  of  Mexican  law  in  each  case,  in  order 
that  he  might  submit  such  draft  to  the  Secretary  of  State,  whereby 
the  rules  that  should  be  adopted  might  be  laid  down,  as  the  result 
of  an  agreement,  which  could  bear  the  form  of  a  simple  exchange 
of  notes,  or  any  other  form  that  might  be  deemed  expedient. 

Mr.  Azpiroz  promised  to  prepare  the  draft  mentioned  and  to 
send  it  to  Mr.  Penfield. 

Thereupon  the  conference  closed,  both  parties  thereto  showing 
themselves  satisfied  over  its  results. 


D 


Articulos  del  Codigo  de  Proce- 
dimientos  penales  del  Estado 
de  Coahuila  relatives  a  la  com- 
probacion  del  cuerpo  del  de- 
lit  o. 

ART.  133.  La  base  del  proce- 
dimiento  criminal  es  la  compro- 
bacion  de  la  existencia  de  un 
hecho  6  la  de  una  omision  que 
la  ley  reputa  delito:  sin  ella  no 
puede  haber  procedimiento  ul- 
terior. 

ART.  134.  Todo  juez  que 
adquiera  conocimiento  de  que  se 
ha  cometido  un  delito,  si  existe 
el  objeto  material  sobre  el  cual 
ha  sido  cometido,  debera  hacer 
que  se  extienda  una  acta  en  que 
se  describan  minuciosamente  los 
caracteres  y  senales  que  presente 


[Translation.] 

Articles  of  the  Code  of  Criminal 
Procedure  of  the  State  of  Coa- 
huila relative  to  the  proof  of 
the  corpus  delicti  in  criminal 
cases. 

ART.  133.  The  basis  for  a 
criminal  proceeding  is  the  proof 
of  the  existence  of  an  act  or  that 
of  an  omission  which  the  law 
considers  to  be  a  delict :  without 
it  no  further  proceedings  can  be 
had. 

ART.  134.  Any  judge  who 
may  obtain  knowledge  that  a 
delict  has  been  committed,  if  the 
material  object  on  which  it  has 
been  committed  should  exist, 
ought  to  have  a  report  made 
wherein  the  character  and  signs 
presented  by  the  hurt,  or  the 


598 


APPENDIX    I. 


la  lesion,  6  los  vestigios  que  el 
delito  haya  dejado,  el  instru- 
mento  6  medio  con  que  prob- 
able 6  necesariamente  haya  de- 
bido  cometerse  y  la  manera  de 
que  se  haya  hecho  uso  del  in- 
strumento  6  medio  para  la  ejecu- 
cion  del  delito.  El  objeto  sobre 
que  este  haya  recaido,  se  de- 
scribira  de  modo  que  queden 
determinadas  su  situacion  y 
cuantas  circunstancias  puedan 
contribuir  a  indagar  el  origen 
del  delito,  asi  como  su  gravedad 
y  los  accidentes  que  lo  hayan 
acompariado.  Esta  acta  se 
llama  de  descripcion. 


ART.  135.  Ademas  de  la  acta 
de  descripcion  se  extendera  otra 
de  inventario,  si  se  encontraren 
algunos  instruments  u  otras 
cosas  que  puedan  tener  relacion 
proxima  6  remota  con  el  hecho 
mismo.  Cuando  los  objetos  en- 
contrados  fueren  pocos  y  se  hal- 
laren  en  el  mismo  sitio  6  a  las 
inmediaciones  del  lugar  en  que 
se  cometio  el  hecho,  el  acta  de 
descripcion  podra  contener  el  in- 
ventario de  aquellos. 

ART.  141.  En  el  acto  de  la  in- 
speccion  del  lugar  en  que  se 
cometio  el  delito,  el  juez  debe 


traces  which  may  be  left  by  the 
delict  shall  be  minutely  de- 
scribed, as  well  as  the  instru- 
ment or  means  with  which  it 
may  probably  or  necessarily 
have  been  committed,  and  the 
manner  in  which  the  instrument 
may  have  been  used  for  the 
execution  of  the  delict.  The  ob- 
ject on  which  the  delict  may 
have  been  committed,  shall  be 
described  in  such  a  way  that  its 
situation  and  any  circumstances 
that  may  contribute  to  deter- 
mine the  origin  of  the  delict 
shall  be  set  forth,  as  well  as 
the  gravity  and  the  accidents 
that  may  have  accompanied  the 
delict.  This  report  shall  be 
called  the  description  of  the 
delict. 

ART.  135.  Besides  the  de- 
scription of  the  delict  there  shall 
be  made  an  inventorial  report, 
if  there  should  be  found  any  in- 
struments or  other  things  that 
may  have  a  proximate  or  re- 
mote relation  to  the  act  itself. 
Should  the  objects  found  be 
few  and  be  discovered  in  the 
same  place  or  near  by  the  place 
where  the  act  was  committed, 
the  report  containing  the  de- 
scription may  also  comprise  the 
inventory  of  such  articles. 

ART.  141.  During  the  official 
investigation  relative  to  the 
place  where  the  delict  was  com- 


APPENDIX    I. 


599 


examinar  a  todas  las  personas 
que  puedan  proporcionar  alguri 
esclarecimiento  sobre  el  delito  y 
sobre  sus  autores  y  complices,  6 
algunas  noticias  titiles  para  la 
averiguacion  de  la  verdad  6  de- 
signar  otras  personas  que  puedan 
larlos. 


ART.  148.  Si  el  delito  fuere 
le  homicidio  u  otro  caso  de 
luerte  por  causa  desconocida  y 

spechosa  6  solamente  so- 
spechosa,  se  procedera  al  examen 
del  cadaver  con  intervencion  de 
peritos,  y  se  ordenara  su  au- 
topsia  extendiendose  diligencia 
formal  con  expresion  circun- 
stanciada  de  la  postura  en  que 
se  halle  el  cadaver,  del  numero 
de  heridas  6  lesiones,  de  las  par- 
tes  del  cuerpo  en  que  las  tiene, 
del  vestido  y  demas  ef  ectos  que 
;e  encontraren  y  de  las  senales 
que  se  adviertan  en  el  terreno 
inmediato. 


ART.  149.  Antes  de  pro- 
cederse  a  la  autopsia  del  cadaver 
se  comprobara  su  identidad  por 
medio  de  sus  parientes  6  amigos, 
que  seran  examinados  en  debida 
forma,  para  que  declaren  el 
nombre  del  muerto,  su  profesion 
y  vecindad,  las  senas  personales 


mitted,  the  judge  ought  to  ex- 
amine all  persons  whose  testi- 
mony may  throw  light  on  the 
delict  and  on  its  principals  and 
accomplices,  or  afford  any  infor- 
mation that  may  be  useful  for 
the  investigation  of  the  truth, 
or  designate  some  other  persons 
who  may  be  able  to  give  such 
testimony. 

ART.  148.  If  the  delict  should 
be  homicide,  or  any  other  case 
of  death  owing  to  an  unknown 
and  suspicious  cause,  or  simply 
owing  to  a  suspicious  cause,  the 
examination  of  the  corpse  shall 
be  proceeded  with  the  attendance 
of  experts,  and  the  autopsy  of 
the  body  shall  be  ordered,  and  a 
report  be  made  stating  with  pre- 
cision the  position  in  which  the 
corpse  is  found,  the  number  of 
wounds  or  hurts,  the  portions 
of  the  body  where  the  same  may 
be  discovered,  the  clothing  and 
other  articles  that  may  be  found, 
and  any  marks  or  signs  that  may 
be  discovered  in  the  immediate 
vicinity  of  the  place. 

ART.  149.  Before  beginning 
the  autopsy  of  the  corpse,  its 
identity  must  be  proved  by 
means  of  the  relatives  or  friends 
of  the  deceased,  who  shall  be 
examined  in  legal  form  so  that 
they  may  testify  as  to  the  name 
of  the  deceased,  his  profession 


600 


APPENDIX    I. 


y  las  ropas  que  vestia   cuando 
salio  de  su  casa. 


ART.  150.  Si  no  se  puede 
identificar  el  cadaver,  se  de- 
scribiran  las  senas  particulares 
que  tuviere,  sus  facciones,  sus 
vestidos  6  cualquiera  otro  objeto 
que  se  le  encuentre;  y  si  el  es- 
tado  del  cadaver  lo  permite,  se 
le  expondra  al  publico  por  las 
horas  que  el  juez  crea  con- 
veniente,  a  fin  de  que  pueda  ser 
visto  y  reconocido,  sacandose 
anemas,  si  fuere  posible,  retratos 
fotograficos  de  los  cuales  se 
agregara  uno  a  los  autos  y  se 
mandaran  fijar  los  demas  en  los 
lugares  publicos,  cuando  no  se 
haya  podido  obtener  aquel  re- 
conocimiento. 

ART.  152.  Si  se  hubiere 
sepultado  el  cadaver  antes  de 
practicar  las  diligencias  an- 
teriores,  se  ordenera  su  exhuma- 
cion  cuando  el  juez  lo  juzgue 
necesario  6  lo  soliciten  las  partes 
acusadoras,  por  su  cuenta,  ob- 
servando  las  debidas  precau- 
ciones  higiencais  y  asistencia  de 
peritos,  y  practicandose  en  se- 
guida  las  diligencias  que  fuerren 
posibles  de  las  que  mencionan  los 
antecedentes  articulos. 


and  residence,  his  personal  de- 
scription and  the  clothing  he 
wore  when  he  left  his  house. 

ART.  150.  Should  it  not  be 
possible  to  identify  the  corpse, 
the  peculiar  description  of  the 
deceased,  as  well  as  his  features, 
his  clothing  and  any  other  arti- 
cle that  may  be  found  on  him 
shall  be  recorded ;  and  if  the  con- 
dition of  the  corpse  should  per- 
mit, it  may  be  exposed  for  in- 
spection by  the  public  during 
the  hours  which  the  judge  may 
deem  proper,  so  that  it  may  be 
seen  and  recognized  and,  if  pos- 
sible, photographs  shall  be  taken 
of  the  body  and  one  of  them 
shall  be  added  to  the  record  and 
the  rest  shall  be  affixed  in  pub- 
lic places  if  the  corpse  shall  not 
have  been  identified. 

ART.  152.  If  the  corpse  shall 
have  been  buried  before  the  fore- 
going proceedings  can  be  had, 
an  order  shall  be  issued  so  as  to 
have  it  exhumed,  should  the 
judge  think  this  proceeding  be 
proper  or  the  complainants  de- 
mand it  at  their  expense;  all 
due  hygienic  precautions  being 
taken  and  the  exhumation  being 
carried  on  in  the  presence  of 
experts,  and  thereupon  such  pro- 
ceedings as  are  mentioned  in  the 
foregoing  articles  shall,  if  pos- 
sible, be  carried  on. 


APPENDIX    I. 


601 


ART.  153.  Cuando  porcual- 
quiera  causa  no  pueda  formarse 
juicio  pericial  con  el  examen  del 
cadaver,  6  este  no  pueda  ex- 
Jnimarse,  aquel  juicio  se  suplird 
con  las  declaraciones  de  los  tes- 
tigos  que  hubiren  visto  antes  el 
cadaver  y  las  lesiones  que  haya 
tenido.  Estos  testigos  manifes- 
tardn  en  que  parte  del  cuerpo  ex- 
istian  las  lesiones,  indicar an  las 
annas  con  que  crean  que  se 
hayan  hecho  y  dirdn  si  son  dc 
opinion  que  todas  6  algunas  de 
lesiones  hayan  ocasionado  la 
luerte. 


ART.  154.     En  caso  de  que  el 
cadaver  no  pueda   encontrarse, 
el  juez  comprobara  la  existencia 
de   la   persona,    el   tiempo    que 
laya  trascurrido  desde  que  no 
tenga    noticia    de    ella,    el 
iltimo  lugar  en  que  se  le  haya 
risto,  y  como  el  cadaver  haya 
>dido  ser  ocultado  6  destruido. 
Ademas     recogera     todos     los 
medios     de     prueba     que     con- 
duzcan    a    la    comprobacion   6 
existencia  del  cuerpo  del  delito. 

ART.  155.  Los  peritos  daran 
su  declaracion  sobre  la  causa 
de  la  muerte,  manifestando  en 
que  tiempo  mas  6  menos  prox- 
imo pudo  acontecer  esta,  y  si 
fue  a  consecuencia  de  las  le- 


ART.  153.  Whenever,  owing 
to  any  circumstances,  no  exam- 
ination can  l)e  made  by  experts, 
or  the  corpse  cannot  be  exhumed, 
such  proceedings  shall  be  sub- 
stituted by  the  testimony  of  the 
witnesses  who  shall  have  seen 
the  corpse  before,  as  well  as  the 
hurts  that  it  may  have  had 
Said  witnesses  shall  state  in  what 
part  of  the  body  the  hurts  ex- 
isted and-  shall  testify  as  to  the 
arms  with  which  they  may  be- 
lieve that  said  hurts  were  made, 
and  will  state  if,  in  their  opin- 
ion, all  or  any  of  the  said  hurts 
shall  have  brought  about  the 
death  of  the  deceased. 

ART.  154.  Should  it  not  have 
been  possible  to  find  the  corpse, 
the  judge  must  obtain  proofs 
as  to  the  existence  of  the  indi- 
vidual, the  time  that  may  have 
elapsed  since  no  news  have  been 
received  regarding  him,  the  last 
place  where  he  may  have  been 
seen,  and  how  the  corpse  could 
have  been  hidden  or  destroyed. 
Furthermore  he  shall  obtain  all 
means  of  proof  that  may  lead 
to  the  evidence  or  existence  of 
the  corpus  delicti. 

ART.  155.  'The  experts  shall 
give  their  opinion  regarding  the 
cause  of  death,  the  approximate 
time  when  that  event  may  have 
occurred,  and  if  the  death  oc- 
curred owing  to  the  hurts  or 


602 


APPENDIX   I. 


siones  6  antes  de  ellas,  6  por  el 
concurso  de  causas  pre-ex- 
istentes  6  de  las  que  sobre- 
vinieron  6  de  otras  extranas  el 
delito,  teniendo  presente  lo  que 
disponen  los  articulos  544,  545 
y  546  del  Codigo  penal.  Cu- 
ando  los  peritos  no  se  expliquen 
respecto  de  estas  circunstancias, 
el  juez  de  oficio  les  interrogara 
acerca  de  ellas. 


ART.  156.  Sie  se  tratare  de 
alguna  persona  herida  6  gol- 
peada,  el  juez,  acompailado  de 
los  peritos,  describira  las  le- 
siones  6  golpes,  indicara  el  lu- 
gar  en  que  esten,  y  senalara 
su  longitud,  anchura  y  pro- 
fundidad  ostensible,  si  hubiere 
peligro  en  averiguar  cual  sea  la 
profundidad  real.  Hara  que 
los  peritos  expresen  la  calidad 
de  las  lesiones  y  si  estan  hechas 
con  armas  de  fuego,  6  con  armas 
punzantes,  cortantes  6  con- 
tundentes,  6  de  otro  modo. 

ART.  157.  Si  los  peritos  no 
pudieren  ser  habidos  desde  luego, 
el  juez  'procederd  sin  su  asisten- 
cencia,  en  los  terminos  del  ar- 
ticulo  anterior. 


before  these  were  inflicted,  or 
owing  to  a  combination  of  pre- 
existing causes  or  of  those  that 
occurred  afterwards,  or  to  oth- 
ers entirely  foreign  to  the  delict, 
and  for  that  purpose  they  shall 
take  into  consideration  the  pre- 
scriptions of  articles  544,  545 
and  546  of  the  Penal  Code. 
Whenever  the  experts  shall  not 
give  any  explanation  regarding 
such  circumstances,  the  judge  ex 
officio  must  interrogate  them  con- 
cerning the  same  circumstances. 

ART.  156.  If  the  case  may  be 
of  a  person  wounded  or  beaten, 
the  judge  assisted  by  experts, 
shall  describe  the  wounds  or 
blows  and  determine  the  site  and 
the  length,  breadth  and  apparent 
depth  thereof,  should  there  be 
any  danger  of  determining  its 
real  depth.  He  shall  require  the 
experts  to  express  the  nature  of 
the  hurts  and  whether  they  were 
caused  by  fire,  cutting  or  pointed 
arms,  or  by  bruising  instru- 
ments, or  in  any  other  manner. 

ART.  157.  //  it  is  not  possible 
to  obtain  experts  at  once,  the 
judge  shall  proceed  with  his  in- 
vestigation without  them,  in  con- 
formity with  the  prescriptions  of 
the  foregoing  article. 


APPENDIX    I. 


603 


Articulos  544,  545  y  546  del 
Codigo  penal  citados  en  el  ar- 
ticido  155  del  Codigo  de  Pro- 
cedimientos  penales. 

ART.  544.  Para  la  imposicion 
de  la  pena  no  se  tendra  como 
mortal  una  lesion  sino  cuando 
se  verifiquen  las  tres  circun- 
stancias  siguientes: 

I.  Que  la  lesion  produzca  por 
si  sola  y  directamente  la  muerte ; 
6  que  aun  cuando  esta  resulte 
de  causa  distinta,  esa  causa  sea 
desarrollada    por    la    lesion    6 
efecto  necesario  6  inmediato  de 
ella: 

II.  Que  la  muerte  se  verifique 
deiitro  de  sesenta  dias  contados 
desde  el  de  la  lesion. 

III.  Que  despues  de  hacer  la 
autopsia   del   cadaver,   declaren 
dos   peritos   que   la   lesion   fue 
mortal,  sujetandose  para  ello  a 
las  reglas  contenidas  en  este  ar- 
ticulo  y  en  los  dos  siguientes. 

ART.  545.  Siempre  que  se 
verifiquen  las  tres  circustancias 
del  articulo  anterior,  se  tendra 
como  mortal  una  lesion,  aunque 
se  pruebe  que  se  habria  evitado 
la  muerte  con  auxilios  opor- 
tunos:  que  la  lesion  no  habria 
sido  mortal  en  otra  persona ;  6 
que  lo  fue  a  causa  de  la  eonsti- 
tucion  fisica  de  la  victima,  6 


Articles  544,  545  and  546  of  the 
Penal  Code  referred  to  in  Art. 
155  of  the  Code  of  Criminal 
Procedure. 

ART.  544.  For  the  infliction 
of  punishment,  a  hurt  shall  not 
be  considered  mortal,  unless  the 
three  following  circumstances 
shall  have  occurred : 

I.  That  the  hurt  by  itself  and 
directly  shall  produce  death;  or 
that  even  if  death  shall  have  oc- 
curred from  another  cause,  the 
latter  cause  shall  be  due  to  the 
hurt  or  be  the  immediate  or  nec- 
essary result  of  the  same. 

II.  That    death    shall    occur 
within  sixty  days  after  the  hurt 
may  have  been  inflicted. 

III.  That  after  the  autopsy  of 
the  corpse  may  be  had,  two  ex- 
perts shall  have  declared  that  the 
hurt  was  mortal,  in  conformity 
for  such  purpose  with  the  rules 
contained  in  this  article  and  the 
two  following. 

ART.  545.  Whenever  the 
three  circumstances  named  in  the 
foregoing  article  may  occur,  the 
hurt  shall  be  considered  mortal, 
although  it  may  be  proved  that 
death  could  have  been  prevented 
by  opportune  help ;  that  the  hurt 
would  not  have  been  mortal  in 
another  person ;  or  that  it  was 
mortal  owing  to  the  physical 


604 


APPENDIX    I. 


delas  circunstancias  en  que  re- 
cibio  la  lesion. 


ART.  546.  Como  consecuencia 
de  las  declaraciones  que  pre- 
ceden,  no  se  tendra  como  mortal 
una  lesion,  aim  que  muera  el  que 
la  recibio ;  cuando  la  muerte  sea 
resultado  de  una  causa  que  ya 
existia  y  que  no  sea  desarrollada 
por  la  lesion,  ni  cuando  esta  se 
haya  vuelto  mortal  por  una 
causa  posterior  a  ella  como  la 
aplicacion  de  medicamentos  posi- 
tivamente  nocivos,  operaciones 
quirurgicas  desgraciadas  6  ex- 
cesos  6  imprudencias  del  pa- 
ciente  6  de  los  que  lo  asistan. 


constitution  of  the  deceased  or  to 
which  occurred  when  he  received 
the  hurt. 

ART.  546.  As  a  result  of  the 
foregoing  statements,  a  hurt 
shall  not  be  considered  mortal, 
even  if  the  person  who  received 
it  may  die,  when  death  shall  have 
been  the  result  of  a  cause  al- 
ready existing  and  may  not  have 
been  due  to  the  hurt,  nor  when 
the  hurt  shall  become  mortal 
through  a  cause  occurring  there- 
after, as  the  application  of  medi- 
cines really  noxious,  unfortunate 
surgical  operations,  or  abuses  or 
imprudent  acts  of  the  patient  or 
of  those  who  may  have  assisted 
him. 


Department  of  State, 

Washington,  April  10,  1900. 
His  Excellency 

The  Governor  of 


Sir:  In  connection  with  my  letter  of  March  26  last,  in  relation 
to  the  extradition  from  Mexico  of  fugitives  from  the  justice  of  the 
United  States,  I  have  the  honor  to  enclose  herewith  for  your  fur- 
ther information  a  memorandum  prepared  at  the  request  of  the 
Department  of  State  by  the  Mexican  Ambassador  at  Washington, 
showing  the  formalities  which  are  required  by  his  Government  to 
be  observed  in  extradition  cases  under  the  treaty  between  the  United 
States  and  Mexico  of  February  22,  1899. 
I  have  the  honor  to  be,  Sir, 

Your  obedient  servant, 

JOHN  HAT. 
Enclosure:  Memorandum  as  above. 


APPENDIX    I.  605 


MEMORANDUM  A$  TO  EXTRADITION  FROM  MEXICO. 

1.  Every  requisition  for  extradition  under  the  provisions  of  the 
treaty  between  the  United  States  of  America  and  Mexico  shall  be 
accompanied  either  by  a  copy  of  the  sentence  of  the  court  in  which 
the  extraditable  person  was  convicted,  or  by  papers  proving  the  al- 
leged crime  or  offense.     The  requisition  shall,  in  all  cases,  be  also 
accompanied  by  a  description  of  the  accused,  in  order  to  establish 
his  identity  with  the  person  whose  extradition  is  demanded. 

2.  The  corpus  delicti  of  homicide  in  cases  of  a  person  not  yet 
sentenced  must  be  established  by  ocular  inspection  of  the  corpse 
and  by  medical  testimony.     If  scientific  evidence  cannot  be  had, 
upon  their  impracticability  being  set  forth,  the  testimony  of  relia- 
ble persons  (experts  to  be  preferred)  or  other  proper  evidence  may 
be  produced. 

3.  The  general  rule  shall  always  be  that,  in  order  to  prove  the 
dstence  of  the  corpus  delicti,  which  is  a  requisite  for  the  arrest 

and  commitment  for  trial  of  a  person  charged  with  the  crime  or 
offense,  the  best  evidence  the  nature  of  the  case  admits  of  shall  be 
presented,  if  possible  to  be  had;  but  if  not  possible,  then  the  best 
that  can  be  had  may  be  allowed. 

4.  The  testimony  of  witnesses  under  fourteen  years  or  of  other 
disqualified  persons  will  not  be  admitted,  unless  the  circumstances 
of  the  case  show  that  better  evidence  cannot  be  had. 

5.  Each  witness  must  explain  satisfactorily  the  manner  in  which 
the  facts  asserted  by  him  or  her  came  to  his  or  her  knowledge. 

6.  The  provision  contained  in  the  third  paragraph  of  Article 
VIII  of  the  treaty  for  the  addition  of  an  "authenticated  copy  of 
the  law  of  the  demanding  copy  defining  the  crime  or  offense ' '  shall 
be  observed  when  the  extradition  is  demanded  for  a  crime  or  offense 
under  the  numbers  19  or  21  of  the  schedule  of  Article  II. 

7.  In  the  cases  of  crimes  or  offenses  committed  or  charged  to  have 
been  committed  by  extraditable  persons  in  any  of  the  frontier 
States  or  Territories,  requisitions  for  surrender  may 'be  made  either 
through  the  diplomatic  or  consular  agents  of  the  demanding  coun- 
try, or  through  the  authorities  of  such  bordering  State  or  Territory 
enumerated  in  Article  IX  of  the  treaty.     In  all  other  cases  requisi- 
tions shall  be  made  by  the  respective  diplomatic  agents,  or,  in  their 


606  APPENDIX    I. 

absence,  by  the  superior  consular  officers,  as  prescribed  by  the  first 
paragraph  of  Article  VIII. 

8.  The  provisional  arrest  authorized  by  Article  X  of  the  treaty 
must  invariably  be  requested  through  the  diplomatic  or  consular 
agent,  whether  the  crime  or  offense  was  committed  or  charged  to 
have  been  committed  in  the  frontier  States  or  Territories,  or  else- 
where. 

April,  1900. 

Department  of  State, 

Washington,  May  14,  1900. 
His  Excellency 

The  Governor  of 


Sir :  Referring  to  my  letter  of  April  10,  1900,  and  its  accompany- 
ing memorandum  by  the  Mexican  Ambassador  at  this  capital  show- 
ing the  formalities  which  are  required  by  this  Government  to  be 
observed  in  extradition  cases  under  the  treaty  between  the  United 
States  and  Mexico  of  February  22,  1899,  I  have  the  honor  to  en- 
close for  your  information  and  guidance  a  further  memorandum 
from  the  Mexican  Ambassador  modifying  paragraphs  1  and  6  of 
the  memorandum  first  mentioned.  The  modifications  are  under- 
scored. 

I  have  the  honor  to  be,  Sir, 

Your  obedient  servant, 

JOHN  HAY. 


MEMORANDUM. 

1.  Every  requisition  for  extradition  under  the  provisions  of  the 
treaty  between  the  United  States  of  America  and  Mexico  shall  be 
accompanied  either  by  a  copy  of  the  sentence  of  the  court  in  which 
the  extraditable  person  was  convicted,  or  by  papers  proving  that 
the  alleged  crime  or  offense  has  been  committed  and  that  there  are 
presumptions  against  the  accused.  The  requisition  shall,  in  all 
cases,  be  also  accompanied  by  a  description  of  the  accused,  in  or- 
der to  establish  his  identity  with  the  person  whose  extradition  is 
demanded. 


APPENDIX    I.  607 

6.  The  provision  contained  in  the  third  paragraph  of  Article 
VIII  of  the  treaty  for  the  addition  of  "an  authenticated  copy  of 
the  law  of  the  demanding  country  denning  the  crime  or  offense" 
shall  be  observed  only  when  the  extradition  is  demanded  for  a 
crime  or  offense  under  the  numbers  19  or  21  of  the  schedule  of 
Article  II. 

Department  of  State, 

Washington,  June  4,  1906. 
His  Excellency 

The  Governor  of 


Sir:  In  view  of  certain  irregularities  which  have  sometimes  oc- 
curred in  connection  with  the  return  to  the  United  States  from  for- 
eign countries  of  fugitives  from  justice,  applications  for  extradition 
of  such  fugitives  which  are  addressed  to  the  Secretary  of  State 
should  hereafter  state  that  such  application  is  made  solely  for  the 
purpose  or  purposes  expressed  therein,  and  not  for  the  purpose  of 
enforcing  the  collection  of  a  debt,  or  of  avoiding  the  penalty  of  a 
bail  bond,  or  for  any  private  purpose  whatever,  and  that  if  the  ap- 
plication be  granted  the  criminal  proceedings  shall  not  be  used  for 
any  of  said  purposes. 

I  have  the  honor  to  be,  Sir, 

Your  obedient  servant, 

ROBERT  BACON, 
Acting  Secretary. 


'Paste  this  leaf  in  Devlin's  Treaty  Making  Power  preceding  page  609." 


SUPPLEMENT, 


Since  the  publication  of  this  work  the  printed  volumes  of  the 
statutes  of  the  United  States  passed  at  the  first  session  of  the  Six- 
tieth Congress  1907-08  have  appeared  and  in  Part  II  the  following 
additional  treaties  and  conventions  are  found: 

Page 
Universal  Postal  Convention,     feigned  at  Rome  May  26,  1906; 

proclaimed  October  16,  1906 5 

International  Sanitary  Convention.  Signed  at  Paris  Decem- 
ber 3,  1903 ;  proclaimed  May  18,  1907 136 

International  convention  providing  for  the  exemption  of  hos- 
pital ships  from  payment  of  dues  and  taxes.     Signed  at 
The  Hague  December  21,  1904;  proclaimed  May  21,  1907.  .   220 
Convention  with  Mexico  determining  territorial  jurisdiction  of 
bancos  in  the  Rio  Grande.     Signed  at  Washington  March 

20,  1905;  proclaimed  June  5,  1907 229 

Treaty  with  Nicaragua  for  the  extradition  of-  fugitives  from 
justice.  Signed  at  Washington  March  1,  1905 ;  proclaimed 

June  15,  1907 235 

Convention  with  Guatemala  for  the  protection  of  patents. 
Signed  at  Guatemala  City  November  10,  1906 ;  proclaimed 

July  9,  1907.  . 244 

Convention  with  Dominican  Republic  for  assisting  in  the  col- 
lection and  application  of  its  customs  revenues.  Signed 
at  Santo  Domingo  February  8,  1907 ;  proclaimed  July  25, 

1907 :  , . .  . 246 

International  convention  for  the  amelioration  of  the  condition 
of  the  wounded  of  armies  in  the  field.  Signed  at  Geneva 

July  6,  1906 ;  proclaimed  August  3,  1907 251 

International  convention  revising  the  duties  on  spirituous 
liquors  imported  into  certain  regions  of  Africa.  Signed 
at  Brussels  November  3,  1906;  proclaimed  December  2, 

1907    278 

(over) 


SUPPLEMENT. 

Pa 


International  convention  creating  an  International  Institute  of 
.  Agriculture  at  Rome.  Signed  at  Rome  June  7,  1905 ;  pro- 
claimed January  29,  1908 234 

Convention  with  France  for  the  settlement  of  disputes  by  ar- 
bitration. Signed  at  Washington  February  10,  1908 ;  pro- 
claimed March  14,  1908 293 

Parcels-post  convention  with  Netherlands.  Signed  at  Wash- 
ington May  10,  1907,  at  The  Hague  March  19,  1908;  ap- 
proved by  the  President  May  10,  1907,  by  Netherlands 
March  24,  1908 29J 

International  convention  of  American  Republics  on  literary 
and  artistic  copyrights.  Signed  at  Mexico  City  January 
27,  1902 ;  proclaimed  April  9,  1908 30C 

Treaty  with  Spain  for  the  extradition  of  fugitives  from  jus- 
tice. Signed  at  Madrid  June  15,  1904 ;  protocol  signed 
at  San  Sebastian  August  13,  1907 ;  proclaimed  May  21, 
1908 ; 

Convention  with  Spain  for  the  settlement  of  disputes  by  ar- 
bitration. Signed  at  Washington  April  20,  1908;  pro-, 
claimed  June  3,  1908. 

Convention  with  Great  Britain  for  the  settlement  of  disputes 
by  arbitration.  Signed  at  Washington  April  4,  1908; 
proclaimed  June  5,  1908 32( 


APPENDIX   II. 

TREATIES  IN  FORCE. 

The  Senate  of  the  United  States,  on  February  11,  1904,  adopted 
a  resolution  providing  that  a  revised  edition  of  the  compilation 
of  treaties  in  force  should  be  prepared  under  the  direction  of  the 
Committee  on  Foreign  Relations,  and  that  there  should  be  inserted 
in  such  edition  all  treaties  proclaimed  and  in  force  at  the  end  of 
that  session  of  Congress. 

Pursuant  to  this  resolution  a  revised  edition  of  treaties  in  force 
was  prepared  under  the  direction  of  the  Committee  on  Foreign 
Relations,  by  Mr.  William  M.  Malloy,  which  contains  the  treaties 
and  conventions,  important  international  acts,  agreements  and  pro- 
tocols, excepting  claim  protocols  to  which  the  United  States  is  a 
party,  in  force  on  April  28,  1904.  A  supplement  was  added  con- 
taining the  treaties  ratified  during  that  session  of  Congress,  but 
which  were  not  proclaimed  and  put  in  force  until  after  the  ad- 
journment of  Congress  on  April  28,  1904. 

The  compilation  prior  to  its  publication  was  submitted  to  the 
Secretary  of  State,  and  was  examined  by  the  Department  of  State 
with  the  object  of  excluding  agreements  and  parts  of  agreements 
which  are  no  longer  considered  as  operative  and  of  comprising  all 
that  are  still  effective. 

References  in  the  following  pages  are  made  to  the  treaties  and 
conventions  contained  in  that  volume  which  are  still  deemed  to 
be  in  force  under  the  designation  "U.  S.  Treaties  1904,"  and  also 
to  the  Statutes  at  Large  of  the  United  States,  where  they  also  may 
be  found.  The  synopsis  of  treaties,  the  notes  as  to  their  effect,  and 
the  chronological  list  of  treaties,  are  taken  from  the  treaty  volume 
'he  treaties  that  have  been  entered  into  since  the  publication  of 
that  compilation  are  referred  to  by  the  volume  and  page  of  the 
Statutes  at  Large  of  the  United  States  where  they  appear,  ex- 
jpt  those  made  in  1908,  which  were  not  accessible  at  the  time  this 
fork  went  to  press. 

Treaties— 39  (609) 


610  APPENDIX   II. 

ALGIERS. 

1795. 
TREATY  OF  PEACE  AND  AMITY. 

Concluded  September  5,  1795;  ratification  advised  by  the  Senate 
March  2,  1796.  (Treaties  and  Conventions,  1889,  p.  1.) 

U.   S.   Treaties     1904,   p.    21;    8    Stats,    at   Large,    133. 

This  treaty  of  twenty-two  articles  provided  for  peace,  commercial 
intercourse,  and  friendly  treatment  of  the  citizens  and  shipping  of 
the  United  States  in  consideration  of  an  annual  payment  to  the 
Dey  of  Algiers.  It  was  superseded  by  the  treaty  of  1815. 

1815. 
TREATY  OP  AMITY  AND  PEACE. 

Concluded  June  30,  1815 ;  ratification  advised  by  the  Senate  De- 
cember 21,  1815;  ratified  by  the  President  December  26,  1815 ; 
proclaimed  December  26,  1815.  (Treaties  and  Conventions, 
1889,  p.  6.) 

U.  S.  Treaties  1904,  p.  21;  8  Stats,  at  Large,  224. 

This  treaty  of  twenty-two  articles  was  signed  by  Commodore 
Decatur  and  William  Shaler,  and  provided  for  the  abolition  of  the 
annual  payment,  for  the  restitution  of  captives  and  property,  for 
commercial  intercourse,  etc. 

1816. 
TREATY  OF  PEACE  AND  AMITY. 

Concluded  December  22  and  23,  1816 ;  ratification  advised  by  the 
Senate  February  1,  1822;  ratified  by  the  President  February 
11,  1822;  proclaimed  February  11,  1822.  (Treaties  and  Con- 
ventions, 1889,  p.  10.) 

U.  S.  Treaties  1904,  p.  21;    8  Stats,  at  Large,  244. 

By  this  treaty  of  twenty-two  articles  the  same  privileges  included 
in  the  treaty  of  1815  were  renewed,  with  an  additional  article 


APPENDIX    II.  611 

annulling  the  special  rights  accorded  to  United  States  vessels  in 
case  of  war. 

Algiers  having  become  a  province  of  France  in  1830,  the  treaty 
became  obsolete. 


ARGENTINE  REPUBLIC. 

(ARGENTINE  CONFEDERATION.) 
1853. 

TREATY  FOR  THE  FREE  NAVIGATION  OF  THE  RIVERS  PARANA  AND 

URUGUAY. 

Concluded  July  10,  1853;  ratification  advised  by  the  Senate  June 
13,  1854;  ratified  by  the  President  July  5,  1854;  ratifications 
exchanged  December  20,  1854;  proclaimed  April  9,  1855. 
(Treaties  and  Conventions,  1889,  p.  16.) 

U.  S.  Treaties  1904,  p.  22;    10  Stats,   at  Large,  Treaties,  233. 

ARTICLES. 

I.  Free     navigation     of     Parana  V.  Possession    of    Martin    Garcia 

and     Uruguay     rivers     con-  Island. 

ceded.  VI.  Free    navigation    in    time    of 

II.  Loading  and  unloading  vessels.  war. 

III.  Marking  channels.  VII.  Accession      of      other      South 

IV.  Collection     of     customs     and  American  governments. 

other  dues.  VIII.  Most  favored  nation  clause. 

IX.  Ratification. 

1853. 
TREATY  OF  FRIENDSHIP,  COMMERCE  AND  NAVIGATION. 

Concluded  July  27,  1853 ;  ratification  advised  by  the  Senate  June 
13,  1854;  ratified  by  the  President  June  29,  1854;  ratifications 
exchanged  December  20,  1854;  proclaimed  April  9,  1855. 
(Treaties  and  Conventions,  1889,  p.  18.) 

U.  S.  Treaties  1904,  p.  24;    10  Stats,  at  Large,  Treaties,  237. 


612  APPENDIX   II. 


AETICLES. 

I.  Amity.  IX.  Privileges  of  citizens;    settling 

II.  Mutual  freedom  of  commerce.  estates. 

III.  Most  favored  nation  clause.  X.  Exemptions  from  military  ser- 

IV.  No  discriminating  duties  to  be  vice  and  forced  loans;  taxes. 

levied.  XI.  Diplomatic        and        consular 

V.  Navigation  dues  to  be  equal.  agents. 

VI.  Mutual  privileges  to  vessels.  XII.  Privileges  in  time  of  war. 

VII.  Nationality  of  vessels.  XIII.  Mutual  protection  to  citizens. 

VIII.  Freedom  to  trade.  XIV.  Eatification. 

1896. 

EXTRADITION  CONVENTION. 

Concluded  September  26,  1896;  ratification  with  amendments  ad- 
vised by  Senate  January  28,  1897 ;  ratification  advised  Febru- 
ary 5,  1900;  ratified  by  President  April  7,  1900;  ratifications 
exchanged  June  2,  1900;  proclaimed  June  5,  1900. 

TJ.  S.  Treaties  1904,  p.  29;  31  Stats,  at  Large,  1883. 

AETICLES. 

I.  Mutual    delivery    of    the    ac-       VIII.  Offense  for  which  to  be  tried, 

cused.  IX.  Articles   in   possession   of   ac- 

II.  Extraditable  crimes.  cused. 

III.  Nondelivery  of  citizens.  X.  Persons  claimed  by  other  coun- 

IV.  Procedure.  tries. 

V.  Provisional  detention.  XI.  Expenses. 

VI.  Political  offenses.  XII.  Eatification;    duration. 
VII.  Limitations. 


AUSTRIA-HUNGARY. 

1829. 
TREATY  OP  COMMERCE  AND  NAVIGATION. 

Concluded  August  27, 1829;  ratification  advised  by  the  Senate  Feb- 
ruary 10,  1830;  ratified  by  the  President  February  11,  1830; 
ratifications  exchanged  February  10,  1831;  proclaimed  Febru- 
ary 10, 1831.  (Treaties  and  Conventions,  1889,  p.  23.) 

IT.  S.  Treaties  1904,  p.  33;  8  Stats,  at  Large,  398. 


APPENDIX   II. 


613 


AETICLES. 

I.  Liberty  of  commerce  and  nav-  VI. 

igation. 
II.  Shipping  charges  to  be  equal.  VII. 

III.  No    discrimination    in    import       VIII. 

duties. 

IV.  Application  of  two  preceding  IX. 

articles.  X. 

V.  Most     favored    nation     treat-  XI. 

ment  of  products.  XII. 

XIII. 


Eeciprocal  right  of  vessels  to 

export. 
Coastwise  trade. 

No  discriminations  against  ves- 
sels. 

Most  favored  nation  favors. 

Consular  officers  authorized. 

Property  of  deceased  persons. 

Duration. 

Eatification. 


The  period  for  the  exchange  of  ratifications  was  extended,  with 
the  advice  and  consent  of  the  Senate,  by  resolution  of  February  3, 
1831,  and  the  consent  of  the  Emperor  of  Austria,  expressed  by  his 
minister  in  the  certificate  of  exchange  of  ratifications,  February  10, 
1831. 

1848. 

CONVENTION  RELATIVE  TO  DISPOSAL  OF  PROPERTY  AND  CONSULAR 

JURISDICTION. 

Concluded  May  8,  1848;  ratification  advised  and  time  for  exchange 
of  ratifications  extended  to  July  4,  1850,  ~by  the  Senate  Feb- 
ruary 13,  1850;  ratified  ~by  the  President  February  15,  1850; 
ratifications  exchanged  February  23,  1850;  proclaimed  Febru- 
ary 25,  1850.  (Treaties  and  Conventions,  1898,  p.  27.) 

U.  S.  Treaties,  1904,  p.  37;  9  Stats,  at  Large,  Treaties,  152. 

AETICLES. 

Disposal  of  personal  property.  III.  Protecting    property    of    absent 

".  Disposal  of  real  property  held  by  heirs. 

deceased  persons.  IV.  Consular  privileges;    deserters. 

V.  Duration. 

1856. 
EXTRADITION  CONVENTION.1 

Concluded  July  3,  1856;  ratification  advised  by  the  Senate  with 
amendment  August  13,  1856;  ratified  by  the  President  Decem- 
ber 12,  1856 ;  ratifications  exchanged  December  13,  1856 ;  pro- 
claimed December  15,  1856.  (Treaties  and  Conventions,  1889, 
p.  29.) 

IT.  S.  Treaties  1904,  p.  39;  11  Stats,  at  Large,  691. 
1  See  In  re  Baruch,  41  Fed.  472;    In  re  Adutt,  55  Fed.  376. 


614  APPENDIX   II. 

ARTICLES. 

I.  Extraditable    crimes;      proceed-       III.  Persons    committing    crimes    in 

ings.  country  where  found. 

II.  Persons  not  to  be  delivered.  IV.  Duration. 

V.  Ratification. 

1870. 
CONSULAR  CONVENTION. 

Concluded  July  11,  1870 ;  ratification  advised  by  the  Senate  De- 
cember 9,  1870;  ratified  by  the  President  December  19,  1870; 
time  for  exchange  of  ratifications  extended  by  the  Senate  May 
12,  1871;  ratifications  exchanged  June  26,  1871;  proclaimed 
June  29,  1871.  (Treaties  and  Conventions,  1889,  p.  31.) 
U.  S.  Treaties  1904,  p.  42;  17  Stats,  at  Large,  821. 

AETICLES. 

I.  Officers  recognized.  X.  Authority  as  to  shipping. 

II.  Exemptions  and  immunities.  XI.  Disputes  between  masters  and 

III.  Exemptions  as  witnesses.  crews. 

IV.  Use  of  arms  and  flags.  XII.  Deserters  from  ships. 

V.  Inviolability  of  archives.  XIII.  Settlement  of  damages  at  sea. 

VI.  Powers  of  acting  officers.  XIV.  Shipwreck  proceedings. 

VII.  Vice-consuls      and       consular  XI.  Most     favored     nation     privi- 

agents.  leges. 

VIII.  Applications   to   local  authori-  XVI.  Notice  of  death  of  intestates. 

ties.  XVII.  Duration;   ratification. 
IX.  Performance   of   notarial  acts. 

1870. 
NATURALIZATION  CONVENTION. 

Concluded  September  20,  1870;  ratification  advised  by  the  Senate 
March  22, 1871;  ratified  by  the  President  March  24, 1871;  rati- 
fications exchanged  July  14,  1871;  proclaimed  August  1,  1871, 
(Treaties  and  Conventions,  1889,  p.  37.) 

U.  S.  Treaties  1904,  p.  48;  17  Stats,  at  Large,  833. 

ARTICLES. 

I.  Requirements  necessary.  IV.  Resumption    of    former     citizen- 

II.  Liability  for  prior  offenses.  ship. 

III.  Former  treaties  continued.  V.  Duration. 

VI.  Ratification. 


APPENDIX    II.  615 

1871. 
TRADEMARK  CONVENTION. 

Concluded  November  25,  1871;  ratification  advised  by  the  Senate 
January  18,  1872;  ratified  by  the  President  January  27,  1872; 
ratifications  exchanged  April  22,  1872;  proclaimed  June  1, 
1872.  (Treaties  and  Conventions,  1889,  p.  39.) 

U.  S.  Treaties  1904,  p.  50;   17  Stats,  at  Large,  917. 

ARTICLES. 

I.  Mutual  protection  of  trademarks.       III.  Duration. 
II.  Registration.  IV.  Ratification. 


BADEN. 

(See  GERMAN  EMPIRE.) 

1857. 
EXTRADITION  CONVENTION. 

Concluded  January  30,  1857 ;  ratification  advised  by  the  Senate 
March  12,  1857;  ratified  by  the  President  March  23,  1857;  rati- 
fications exchanged  April  21,  1857  ;  proclaimed  May  19,  1857. 
(Treaties  and  Conventions,  1889,  p.  41.) 

U.  S.  Treaties  1904,  p.  52;  11  Stats,  at  Large,  713. 

ARTICLES. 

I.  Extraditable     crimes;     proceed-       III.  Persons    committing    crimes    in 

ings.  country  where  found. 

'I       II.  Persons  not  to  be  delivered.  IV.  Duration. 

V.  Ratification. 

1868. 
NATURALIZATION  CONVENTION. 

Concluded  July  19,  1868;  ratification  advised  by  the  Senate  April 
12,  1869;  ratified  by  the  President  April  18,^1869;  ratifications 
exchanged  December  7,  1869;  proclaimed  January  10,  1870. 
(Treaties  and  Conventions,  1889,  p.  43.) 

U.  S.  Treaties  1904,  p.  54;  16  Stats,  at  Large,  731. 


616 


APPENDIX   II. 


AETICLES. 


I.  Requirements  necessary. 
II.  Liability  for  prior  offenses. 
III.  Former  treaty  continued. 


IV.  Resumption    of    former    citizen- 
ship. 

V.  Duration. 
VI.  Ratification. 


BAVARIA. 

(See  GERMAN  EMPIRE.) 
1845. 

CONVENTION  ABOLISHING  DROIT  D'AUBAINE  AND  TAXES  ON  EMI- 
GRATION. 

Concluded  January  21,  1845;  ratification  advised  by  the  Senate, 
with  amendment,  March  15,  1845;  ratified  by  the  President 
March  18, 1845;  ratifications  exchanged  November  4, 1845;  pro- 
claimed August  16,  1846.  (Treaties  and  Conventions,  1889,  p. 
45.) 

U.  S.  Treaties  1904,  p.  57;  9  Stats,  at  Large,  Treaties,  9. 
ARTICLES. 


I.  Taxes  abolished. 
II.  Disposal  of  real  property. 
IH.  Disposal  of  personal  property. 
IV.  Protecting    property    of    absent 
heirs. 


V.  Disputes  as  to  inheritances. 
VI.  Emigration  from  Bavaria    not 

affected. 
VII.    Ratification. 


1853. 
EXTRADITION  CONVENTION.1 

Concluded  September  12,  1853;  ratification  advised  by  the  Senate 
with  an  amendment  July  12,  1854;  ratified  by  the  President 
July  24,  1854;  ratifications  exchanged  at  London  November  1, 
1854;  proclaimed  November  18,  1854.  (Treaties  and  Conven- 
tions, 1889,  p.  47.) 

U.  S.  Treaties  J904,  p.  59;  10  Stats,  at  Large,  Treaties,  174. 
1  See  In  re  Thomas,    12    Blatchf.  370,  Fed.  Gas.  No.  13,887. 


APPENDIX    II. 


617 


ARTICLES. 

I.  Extraditable     crimes;     proceed-  IV.  Persons    committing    crimes    in 

ings.  country  where  found. 

II.  Accession      of     other      German  V.  Duration. 

States.  VI.  Ratification. 
III.  Persons  not  to  be  delivered. 


1868. 

NATURALIZATION  TREATY. 

Concluded  May  26,  1868;  ratification  advised  ~by  the  Senate  June 
29,  1868;  ratified  by  the  President  July  17,  1868;  ratifications 
exchanged  September  18,  1868;  proclaimed  October  5,  1868. 
(Treaties  and  Conventions,  1889,  p.  49.) 

U.  S.  Treaties  1904,  p.  61;  15  Stats,  at  Large,  661. 


ARTICLES. 


I.  Necessary  requirements. 
II.  Liability  for  prior  offenses. 
[I.  Former  convention  continued. 


IV.  Resumption    of    former    citizen- 
ship. 

V.  Duration. 
VI.  Ratification. 


BELGIUM. 

1845. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  November  10,  1845;  ratification  advised  by  the  Senate 
March  26, 1846;  ratified  by  the  President  March  30, 1846;  rati- 
fications exchanged  March  30,  1846 ;  proclaimed  March  31, 
1846.  (Treaties  and  Conventions,  1889,  p.  52.) 

IT.  S.  Treaties  1904,  p.  64;  8  Stats,  at  Large,  606. 

This  treaty  contained  twenty  articles,  and  was  terminated  Au- 
gust 20,  1858,  by  notice  given  by  the  Belgian  Government. 


618  APPENDIX    II. 

1858. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  July  17,  1858;  ratification  advised  by  the  Senate  March 
8,  1859;  ratified  by  the  President  April  13,  1859;  ratifications 
exchanged  April  16,  1859;  proclaimed  April  19,  1859.  (Treat- 
ies and  Conventions,  1889,  p.  56.) 

U.  S.  Treaties   1904,  p.   64;    12   Stats,   at  Large,   1043. 

This  treaty  contained  eighteen  articles,  and  was  terminated  July 
1,  1875,  by  notice  given  by  the  Belgian  Government. 

1863. 

CONVENTION  RELATIVE  TO  IMPORT  DUTIES  AND  CAPITALIZATION  OF 

SCHELDT  DUES. 

Concluded  May  20,  1863;  ratification  advised  by  the  Senate  Febru- 
ary 26,  1864;  ratified  by  the  President  March  5}  1864;  ratifi- 
cations exchanged  June  24,  1864;  proclaimed  November  18, 
1864.  (Treaties  and  Conventions,  1889,  p.  60.)  , 

U.  S.  Treaties  1904,  p.  64;  13  Stats,  at  Large,  655. 

This  convention  contained  five  articles,  and  those  which  were  not 
transitory  have  been  superseded  by  the  Treaty  of  1875. 

.  1863. 
CONVENTION  FOR  THE  EXTINGUISHMENT  OF  THE  SCHELDT  DUES. 

Concluded  July  20,  1863;  ratification  advised  by  the  Senate  Febru- 
ary 26,  1864;  ratified  by  the  President  March  5,  1864;  ratifi- 
catimis  exchanged  June  24,  1864;  proclaimed  November  18, 
1864.  (Treaties  and  Conventions,  1889,  p.  62.) 

U.  S.  Treaties  1904,  p.  65;  13  Stats,  at  Large,  655. 

AETICLES. 

I.  Scheldt  dues  extinguished.  V.  Execution. 

II.  Declaration  by  King  of  Belgium.  VI.  Application. 

III.  Tonnage  and  other  dues.  VII.  Eatification. 

IV.  Payment  by  the  United  States. 


APPENDIX    II.  619 

1868. 
NATURALIZATION  CONVENTION. 

Concluded  November  16,  1868;  ratification  advised  by  the  Senate 
April  12,  1869;  ratified  by  the  President  April  18,  1869;  ratifi- 
cations exchanged  July  10,  1869;  proclaimed  July  30,  1869. 
(Treaties  and  Conventions,  1889,  p.  66.) 

U.  S.  Treaties  1904,  p.  68;  16  Stats,  at  Large,  66. 

AETICLES. 

I.  Eecognition  of  naturalization.  IV.  Eesumption    of    former    citizen- 

II.  Liability  for  prior  offenses.  ship. 

III.  Exemption    from    military    ser-  V.  Duration. 

vice.  VI.  Eatification. 

1868. 
CONSULAR  CONVENTION. 

Concluded  December  5,  1868;  ratification  advised  by  the  Senate 
April  12,  1869;  ratified  by  the  President  April  18,  1869;  rati- 
fications exchanged  July  8,  1869 ;  proclaimed  March  7,  1870. 
(Treaties  and  Conventions,  1889,  p.  68.) 

U.  S.  Treaties  1904,  p.  70;    16  Stats,  at  Large,  757. 

This  treaty,  which  contained  sixteen  articles,   was  terminated 
January  1,  1880,  on  notice  given  by  the  Belgian  Government. 

Federal  case:   In  re  Wilrlenhus,  28  Fed.  924. 

1868. 

TRADEMARK  CONVENTION. 

Concluded  December  20,  1868;  ratification  advised  by  the  Senate 
April  12,  1869;  ratified  by  the  President  April  18,  1869;  rati- 
fications exchanged  June  19,  1869;  proclaimed  July  30,  1869, 
(Treaties  and  Conventions,  1889,  p.  72.) 

U.  S.  Treaties  1904,  p.  70;    16  Stats,  at  Large,  765. 

This  was  an  'additional  article  to  the  treaty  of  1858,  and  termin- 
ated with  it  July  1,  1875. 


620 


APPENDIX    II. 


1874. 
EXTRADITION  CONVENTION. 

Concluded  March  19,  1874;  ratifications  advised  by  the  Senate 
March  27, 1874;  ratified  by  the  President  March  31,  1874;  rati- 
fications exchanged  April  30,  1874;  proclaimed  May  1,  1874. 
(Treaties  and  Conventions,  1889,  p.  73.) 

U.  S.  Treaties  1904,  p.  70;    18  Stats,  at  Large,  Treaties,  120. 

This  treaty  contained  eight  articles,  and  was  terminated  Novem- 
ber 18,  1882,  on  the  exchange  of  ratifications  of  the  Treaty  of  1882. 

Federal  cases:  Ex  parte  Van  Ho-  501,  Fed.  Gas.  No.  13,563;  In  re 
ven,  4  Dill.  411,  Fed.  Gas.  No.  Vandervelpen,  14  Blatchf.  137,  Fed. 
16,858;  In  re  Stupp,  12  Blatchf.  Cas.  No.  16,844. 


1875. 

TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  March  8,  1875 ;  ratification  advised  by  the  Senate  March 
10, 1875;  ratified  by  the  President  March  16, 1875;  ratifications 
exchanged  June  11, 1875;  proclaimed  June  29, 1875.  (Treaties 
and  Conventions,  1889,  p.  76.) 

U.   S.   Treaties   1904,  p.   71;   19   Stats,   at  Large,   Treaties,   72. 


ARTICLES. 


I.  Freedom  of  commerce  and  nav- 
igation. 

II.  Duties  payable  by  Belgian  ves- 
sels. 
III.  Duties  payable  by  United  States 

vessels. 
IV.  Coasting  trade. 

V.  Import  trade. 
VI.  Export  duties. 

VII.  Premiums,  drawbacks,  etc. 

VIII.  Fisheries  excluded. 


IX.  Nationality  of  vessels. 

X.  Cargoes  for  other  countries. 
XI.  Warehousing. 

XII.  Most    favored    nation    privi- 
leges. 

XIII.  Shipwrecks. 
XIV.  Transit  duty. 

XV.  Trademarks. 
XVI.  Duration. 
XVII.  Ratification. 


APPENDIX    II. 


621 


1880. 
CONSULAR  CONVENTION. 

Concluded  March  9,  1880;  ratification  advised  by  the  Senate  with 
amendments  June  15,  1880;  ratified  by  the  President  June  25, 
1880 ;  time  for  exchange  of  ratifications  extended  by  the  Senate 
January  5,  1881;  ratifications  exchanged  February  25,  1881; 
proclaimed  March  1,  1881.  (Treaties  and  Conventions,  1889, 
p.  80.) 

U.  S.  Treaties  1904,  p.  75;  21  Stats,  at  Large,  776. 


AETICLES. 

I.  Officers  authorized.  IX. 
II.  Privileges. 

III.  Exemptions.  X. 

IV.  Testimony  by  consular  officers.  XI. 

V.  Arms  and  flags.  XII. 

VI.  Inviolability  of  consulates.  XIII. 

VII.  Acting  officers.  XIV. 

VIII.  Vice-consuls       and       consular  XV. 

agents.  XVI. 


Applications  to  local  authori- 
ties. 

Performance  of  notarial  acts. 
Authority  as  to  shipping. 
Deserters  from  ships. 
Settlement  of  damages  at  sea. 
Shipwreck  proceedings. 
Estates  of  deceased  persons. 
Duration;  ratification. 


1882. 
EXTRADITION  CONVENTION. 

Concluded  June  13, 1882;  ratification  advised  by  the  Senate  August 
8,  1882;  ratified  by  the  President  November  16,  1882;  ratifica- 
tions exchanged  November  18,  1882;  proclaimed  November  20, 
1882.  (Treaties  and  Conventions,  1889,  p.  85.) 

U.  S.  Treaties  1904,  p.  80;  22  Stats,  at  Large,  972. 

This  treaty  contained  eleven  articles  and  was  terminated  June 
14.  1902,  on  the  exchange  of  ratifications  of  the  treaty  of  1901. 

1884. 
TRADEMARK  CONVENTION. 

Concluded  April  7,  1884;  ratification  advised  by  the  Senate  June 
12,  1884;  ratified  by  the  President  July  7,  1884;  ratifications 
exchanged  July  7,  1884;  proclaimed  July  9,  1884.  (Treaties 
and  Conventions,  1889,  p.  88.) 


U.  S.  Treaties  1904,  p.  80;  23  Stats,  at  Large,  766. 


622 


APPENDIX    II. 


I.  Mutual  protection. 
II.  Eequirements. 


ARTICLES. 

III.  Duration;  ratification. 


1901. 
EXTRADITION  CONVENTION. 

Concluded  October  26,  1901;  ratification  advised  by  Senate  Janu- 
ary 30,  1902;  ratified  by  President  June  13,  1902;  ratifications 
exchanged  June  14,  1902;  proclaimed  June  14,  1902. 

U.  S.  Treaties  1904,  p.  82;  32  Stats,  at  Large,  1894. 


I.  Delivery  of  accused. 
II.  Extraditable  crimes. 
III.  Offenses  for  which  to  be  tried; 

third  countries. 
IV.  Political  offenses. 

V.  Nondelivery  of  citizens. 
V.I.  Deferring  extradition. 


ARTICLES. 

VII.  Procedure. 
VIII.  Expenses. 
IX.  Limitations. 

X.  Articles  in  possession    of    ac- 
cused. 
XI.  Ratification;    duration. 


BOLIVIA. 

1858. 
TREATY  OF  PEACE,  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  May  13,  1858;  ratification  advised  with  amendments  by 
the  Senate  June  26, 1860;  amendments  proposed  by  Constituent 
Assembly  of  Bolivia  consented  to  by  the  Senate  and  time  for 
exchange  of  ratifications  extended  February  3,  1862;  ratified 
by  the  President  February  17,  1862;  ratifications  exchanged 
November  9, 1862;  proclaimed  January  8, 1863.  (Treaties  and 
Conventions,  1889,  p.  90.) 

U.  S.  Treaties  1904,  p.  87;  12  Stats,  at  Large,  1003. 


APPENDIX    II. 


623 


ARTICLES. 

I.  Mutual  amity.  XXI. 

II.  Most  favored  nation  clause.  XXII. 

111.  Freedom  of  trade;  coasting 

trade;  travel.  XXIII. 

•  IV.  Tonnage  charges.  XXIV. 

V.  Nationality      of      Bolivian  XXV. 

ships. 

VI.  Import   and   export   duties.  XXVI. 

VII.  Liberty  to  trade. 

VIII.  Steam  vessels  in  Bolivia.  XXVII. 

IX.  Asylum  of  ports,  etc. 
X.  Assistance  to  shipwrecks.         XXVIII. 
XI.  Captures  by  pirates. 
XII.  Property  of  decedents.  XXIX. 

XIII.  Protection  to  citizens.  XXX. 

XIV.  Religious    freedom. 

XV.  Freedom  of  navigation.  XXXI. 

XVI.  Neutral  rights;  free  ships, 

free   goods.  XXXII. 

XVII.  Contraband  of  war.  XXXIII. 

XVIII.  Commerce      permitted       in        XXXIV. 
case  of  war.  XXXV. 

XIX.  Delivery  of  contraband  ar- 
ticles. XXXVI. 
XX.  Blockade. 


Visitation  and  search. 

Proof  of  nationality  in 
case  of  war. 

Vessels  under  convoy. 

Adjudication  of  prizes. 

Letters  of  marque  forbid- 
den. 

Navigation  of  the  Amazon 
and  La  Plata. 

Tributaries  of  the  Amazon 
and  La  Plata. 

Rights  of  citizens  in  case 
of  war. 

Confiscation   forbidden. 

Privileges  to  diplomatic 
and  consular  officers. 

Consular  officers  author- 
ized. 

Exequaturs. 

Consular  exemptions. 

Deserters  from  ships. 

Agreement  for  consular 
convention. 

Duration;  effect,  etc.,  of 
treaty;  ratification. 


1900. 
EXTRADITION  CONVENTION. 

\Concluded  April  21,  1900;  ratification  advised  by  Senate  December 
18,  1900;  ratified  by  President  August  2,  1901;  ratifications  ex- 
changed December  23,  1901;  proclaimed  December  30,  1901. 

U.  S.  Treaties  1904,  p.  99;  32  Stats,  at  Large,  1857. 
ARTICLES. 


I.  Delivery  of  accused. 
II.  Extraditable  crimes. 
III.  Procedure. 
IV.  Provisional    detention. 

V.  Nondelivery  of  citizens. 
VI.  Political  offenses. 
VII.  Limitations. 


VIII.  Prior  offenses. 

IX.  Property  seized  with  fugitive. 
X.  Persons     claimed     by     other 

countries. 
XI.  Expenses. 
XII.  Ratification;    duration. 


624  APPENDIX    II. 

BORNEO. 

1850. 
CONVENTION  OF  AMITY,  COMMERCE,,  AND  NAVIGATION. 

Concluded  June  23, 1850;  ratification  advised  and  time  for  exchange 
of  ratifications  extended  by  the  Senate  June  23,  1852;  ratified 
by  the  President  January  31,  1853;  ratifications  exchanged 
July  11,  1853;  proclaimed  July  12,  1854.  (Treaties  and  Con- 
ventions, 1889,  p.  102.) 

TJ.  S.  Treaties  1904,  p.  103;  10  Stats,  at  Large,  89. 

AETICLES. 

I.  Amity.  VI.  No  expert  duty  on  products  of 

II.  Liberty  of  commerce.  Borneo. 

III.  Protection    to    United  States         VII.  Supplies    for    American    ships 

citizens.  of  war. 
IV.  Freedom   of   imports    and    ex-       VIII.  Shipwrecks. 

ports.  IX.  Extraterritoriality  in  Borneo; 

V.  Tonnage   on   American  ships;                       ratification, 
exemptions. 


BRAZIL. 

1828. 
CONVENTION  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  December  12,  1828;  ratification  advised  by  the  Senate 
March  10, 1829;  ratified  by  the  President  March  10, 1829;  rati- 
fications exchanged  March  18, 1829;  proclaimed  March  18, 1829, 
(Treaties  and  Conventions,  1889,  p.  105.) 

U.  S.  Treaties  1904,  p.  106;  8  Stats,  at  Large,  390. 

By  a  notice  given  from  the  Emperor  of  Brazil  this  treaty,  "only 
for  articles  relating  to  commerce  and  navigation,"  was  terminated 
December  12,  1841. 


APPENDIX   H. 


625 


I.  Amity. 

II.  Favored    nation    clause. 
III.  Freedom  of  commerce  and 
navigation ;      coasting 
trade. 

IV.  No   discrimination   on   ves- 
sels. 

V.  Import   and   export   duties. 
VI.  Freedom  of  trade. 
VII.  Embargoes. 
VIII.  Asylum  in  ports. 
IX.  Captures   by   pirates. 

X.  Shipwrecks. 
XL  Disposal  of  property. 
XII.  Special  protection. 

XIII.  Religious  freedom. 

XIV.  Eights  of  neutrals. 

XV.  Neutral     property      under 

enemies'  flag. 
XVI.  Contraband  of  war. 
XVII.  Trade    with    nonblockaded 


AETICLES. 

XVIII.  Seizure  of  contraband  arti- 
cles. 
XIX.  Blockades. 

XX.  Visitation    and    search. 
XXI.  Ship's    papers    in    case    of 

war. 

XXII.  Vessels  under  convoy. 
XXIII.  Prize  courts. 
XXIV.  Letters  of  marque  forbid- 
den. 

XXV.  Protection  in  case  of  war. 
XXVI.  Confiscation  forbidden. 
XXVII.  Diplomatic  officers. 
XXVIII.  Consular  officers. 
XXIX.  Exequaturs. 

XXX.  Consular  exemptions. 
XXXI.  Deserters  from  ships. 
XXXII.  Consular   convention. 
XXXIII.  Duration;  effect,  etc.;  rati- 
fication. 


ports. 

1849. 

CONVENTION  FOR  SATISFACTION  OF  CLAIMS  OF  CITIZENS  OF  THE 

UNITED  STATES  ON  BRAZIL. 

Concluded  January  27,  1849;  ratification  advised  by  the  Senate 
January  14,  1849;  ratified  by  the  President  January  18,  1850 ; 
ratifications  exchanged  January  18,  1850;  proclaimed  January 
19,  1850.  (Treaties  and  Conventions,  1889,  p.  115.) 

U.  S.  Treaties  1904,  p.   116;   9  Stats,  at  Large,  Treaties,  157. 
By  this  convention  of  six  articles,  530,000  milreis  were  paid  by 
Brazil  in  satisfaction  of  claims  made  by  United  States  citizens,  and 
the  amount  was  distributed  by  the  United  States. 

1878. 

DIPLOMATIC  AGREEMENT  CONCERNING  TRADEMARKS. 
Concluded  September  24,  1878;  ratification  advised  by  the  Senate 
January  20,  1879;  ratified  by  the  President  February  5,  1879; 
proclaimed  June  17,  1879.     (Treaties  and  Conventions,  1889. 
p.  118.) 

U.  S.  Treaties  1904,  p.  116;  21  Stats,  at  Large,  659. 

Treaties — 4  0 


626  APPENDIX    II. 

1898. 
EXTRADITION  CONVENTION  AND  PROTOCOL. 

Concluded,  respectively,  May  14,  1897,  and  May  28,  1898;  ratifica- 
tion advised  by  Senate  February  28,  1899;  ratified  by  Presi- 
dent February   13,   1903;   ratifications   exchanged   April   18, 
1903;  proclaimed  April  30,  1903. 

U.  S.  Treaties  1904,  p.  117;  33  Stats,  at  Large,  pt.  2,  p.  2091. 
AETICLES. 


I.  Delivery  of  the  accused. 
II.  Extraditable  crimes. 
III.  Political  offenses. 
IV.  Offense  for  which  tried;  third 

government. 

V.  Nondelivery  of  citizens. 
VI.  Extradition  deferred. 


VII.  Person  claimed  by  other  coun-     i 

tries. 
VIII.  Limitations. 

IX.  Property  seized  with  fugitive. 

X.  Procedure. 
XI.  Provisional  detention. 
XII.  Expenses. 
XIII.  Batification;   duration. 


BREMEN. 

(See  GERMAN  EMPIRE.) 

The  Free  Hanseatic  City  of  Bremen  (now  incorporated  in  the 
German  Empire),  September  6,  1853,  acceded  to  the  extradition 
convention  between  the  United  States  and  Prussia  of  June  16,  1852, 
(Treaties  and  Conventions,  1889,  p.  118.) 

U.  S.  Treaties  1904,  p.   123. 


BRUNSWICK  AND  LuNEBURG. 

(See  GERMAN  EMPIRE.) 

1854. 
CONVENTION  RESPECTING  THE  DISPOSITION  OF  PROPERTY. 

Concluded  August  21, 1854;  ratification  advised  by  the  Senate  with 
amendment  March  3,  1855;  ratified  by  the  President  July  10, 
1855;  ratifications  exchanged  July  28,  1855;  proclaimed  July 
30, 1855.  (Treaties  and  Conventions,  1889,  p.  119.) 

U.  S.  Treaties  1904,  p.  123;  11  Stats,  at  Large,  601. 


APPENDIX    II.  627 

AKTICLES. 

I.  Disposition     of     personal    prop-       TIT.   Duration;   ratification. 

erty. 
II.  Disposition  of  real  estate. 


CENTRAL  AMERICA. 

1825. 
CONVENTION  OF  PEACE,  AMITY,  COMMERCE  AND  NAVIGATION. 

Concluded  December  5,  1825 ;  ratification  advised  by  the  Senate 
December  29,  1825;  ratified  by  the  President  January  16,  1826; 
ratifications  exchanged  August  2,  1826 ;  proclaimed  October  28, 
1826.  (Treaties  and  Conventions,  1889,  p.  121.) 

U.  S.  Treaties  1904,  p.  125;  8  Stats,  at  Large,  322. 

This  treaty,  consisting  of  thirty-three  articles,  terminated  as  to 
irticles  relating  to  commerce  and  navigation,  August  2,  1838,  by 
leir  own  limitations,  and  the  entire  treaty  was  abrogated  by  the 
lissolution  of  the  Republic  in  1839. 


CHILE. 

1832. 
CONVENTION  OF  PEACE,  AMITY,  COMMERCE  AND  NAVIGATION. 

Concluded  May  16,  1832  ;  ratification  advised  by  the  Senate  Decem- 
ber 19,  1832;  ratified  by  the  President  April  26,  1834;  ratifica- 
tions exchanged  April  29,  1834;  proclaimed  April  29,  1834. 
(Treaties  and  Conventions,  1889,  p.  131.) 

U.  S.  Treaties  1904,  p.  126;  8  Stats,  at  Large,  434. 

This  treaty,  containing  thirty-one  articles  relating  to  commerce 
and  navigation,  consular  and  diplomatic  privileges,  etc.,  remained 
in  force  until  January  20,  1850,  when  it  was  terminated  on  notice 
given  by  the  Chilean  government. 

Federal  case:    United  States  v.  Trumbull,  48  Fed.  94. 


628  APPENDIX  n. 

1833. 
CONVENTION  ADDITIONAL  TO  THE  GENERAL  TREATY  OF  1832. 

Concluded  September  1,  1833;  ratification  advised  ~by  the  Senate 
April  24, 1834;  ratified  by  the  President  April  26, 1834;  ratifi- 
cations exchanged  April  29,  1834;  proclaimed  April  29,  1834. 
(Treaties  and  Conventions,  1889,  p.  140.) 

U.  S.  Treaties  1904,  p.  126;  8  Stats,  at  Large,  456. 

This  convention  of  four  articles  extended  the  time  for  the  ex- 
change of  ratifications  of  the  convention  of  1832,  and  was  explana- 
tory of  certain  articles.  It  was  terminated  January  20,  1850,  on 
notice  given  by  the  Chilean  government. 

1858. 
CONVENTION  FOR  ARBITRATION  OF  MACEDONIAN  CLAIMS. 

Concluded  November  10,  1858;  ratification  advised  by  the  Senate 
March  8,  1859;  ratified  by  the  President  August  4,  1859;  rati- 
fications exchanged  October  15, 1859;  proclaimed  December  22, 
1859.  (Treaties  and  Conventions,  1889,  p.  142. 

U.  S.  Treaties  1904,  p.  126;  12  Stats,  at  Large,  1083. 

The  claims  of  the  owners  of  the  property  referred  to  in  the  treaty 
were  submitted  to  the  arbitration  of  the  King  of  Belgium,  who, 
on  May  15,  1863,  rendered  an  award  in  favor  of  the  United  States, 
allowing  $42,400  with  interest. 

1892. 
CLAIMS  CONVENTION. 

Concluded  August  7,  1892;  ratification  advised  by  the  Senate  De- 
cember 8,  1892;  ratified  by  the  President  December  16,  1892; 
ratifications  exchanged  January  26,  1893;  proclaimed  January 
28,  1893. 

U.   S.   Treaties   1904,  p.   127;   27   Stats,  at  Large,  965. 

This  treaty  of  twelve  articles  provided  for  the  submission  of  the 
claims  of  the  United  States  citizens  against  Chile  and  of  Chilean 
citizens  against  the  United  States  to  a  commission.  The  commis- 


APPENDIX    II. 


629 


sion  met  in  Washington,  D.  C.,  October  9,  1893,  and  held  their 
final  session  April  9,  1894,  awarding  $240,564.35  to  the  United 
States  for  its  citizens. 

1897. 
CLAIMS  CONVENTION. 

Concluded  May  24,  1897 ;  ratification  advised  by  the  Senate  Feb- 
ruary 28,  1899;  ratified  by  President  March  1,  1899;  ratifica- 
tions exchanged  March  12,  1900 ;  proclaimed  March  12,  1900. 

U.  S.  Treaties  1904,  p.  127;  31  Stats,  at  Large,  1868. 

This  treaty,  containing  two  articles,  revived  the  claims  convention 
of  August  7,  1892. 

1900. 
EXTRADITION  TREATY. 

Concluded  April  17,  1900;  ratification  advised  by  Senate  December 
18,  1900;  ratified  by  President  May  24,  1900;  ratifications  ex- 
changed May  27,  1902;  proclaimed  May  27,  1902. 

U.  S.  Treaties  1904,  p.  128;  32  Stats,  at  Large,  vol.  2,  p.  1850. 


I.  Delivery   of   accused. 
II.  Extraditable  crimes. 

III.  Procedure. 

IV.  Provisional  detention. 
V.  Nondelivery  of  citizens. 

VI.  Political    offenses. 
VII.  Limitations. 


AETICLES. 

VIII.  Prior  offenses. 

IX.  Property  seized  with  fugitive. 
X.  Persons     claimed     by     other 

countries. 
XI.  Expenses. 
XII.  Eatification;    duration. 


CHINA. 

[NOTE. — The  treaty  as  to  commercial  relations,  concluded  October 
1903,  Article  XVII,  provides:  "It  is  agreed  ....  that  all 
the  provisions  of  the  several  treaties  between  the  United  States 
and  China  which  were  in  force  on  the  1st  day  of  January,  1900, 
are  continued  in  full  force  and  effect,  except  in  so  far  as  they 
are  modified  by  the  present  treaty  or  other  treaties  to  which  the 
United  States  is  a  party. ff] 


630 


APPENDIX    IT. 


1844. 

TREATY  OF  PEACE,  AMITY,  AND  COMMERCE. 

Concluded  July  3,  1844;  ratification  advised  l>y  the  Senate  January 
16,  1845;  ratified  by  the  President  January  17,  1845 ;  ratifica- 
tions exchanged  December  31, 1845;  proclaimed  April  18,  1846. 
(Treaties  and  Conventions,  1889,  p.  145.) 
IT.  S.  Treaties*  1904,  pp.  132,  133,  134;  8  Stats,  at  Large,  592. 
As  the  Treaty  of  1858  was  negotiated  as  a  substitute,  the  refer- 
ences are  given  to  the  corresponding  articles  in  the  later  treaty, 
and  the  articles  not  referred  to  therein  are  printed  in  the  treaty 
volumes. 

AETICLES. 


I.  Peace     and     amity.     (See 

Art.  I,  p.  135.) 
II.  Import   and   export    duties. 
(See  Treaty  of  November 
8,  1858,  p.  145.) 

III.  Open      ports.     (See       Art. 

XIV,  p.  139.) 

IV.  Consular         officers.      (See 

Art.  X,  p.  138.) 
V.  Commerce.     (See  Art.  XV, 

p.  140.  ) 
VI.  Tonnage  duties.     (See  Art. 

XVI,  p.  140.) 

VII.  Passenger  and  cargo  boats. 
VHI.  Pilots,       etc.     (See       Art. 

XII,  p.   140.) 
IX.  Custom-house  officers.   (See 

Art.  XVIII,  p.   140.) 
X.  Vessels  arriving  in  China. 

(See  Art.  XIX,  p.  141.) 
XI.  Ascertainment     of     duties. 

(See  Art.  XX,  p.  142.) 
XII.  Standard       weights       and 
measures. 

XIII.  Payment    of    duties.     (See 

Art.   XXII,   p.    142.) 

XIV.  Transshipment     of     goods. 

(See  Art.  XXIII,  p.  143.) 
XV.  Liberty  to   trade. 
XVI.  Collection   of   debts.     (See 

Art.  XXIV,  p.  143.) 
XVII.  Privileges  of    open    ports. 

(See  Art.  XII,  p.  138.) 
XVIII.  Chinese  teachers,  etc.  (See 
Art.  XXV,  p.  143.) 


XIX.  Protection        to        United 
States  citizens.    (See  Art. 
XI,   p.    138.) 
XX.  Ee-exportation.     (See   Art. 

XXI,  p.  142.) 
XXI.  Punishment      for       crimes. 

(See   Art.   XI,   p.   138.) 
XXII.  Trade  with  China  in  case 
of  war.     (See  Art.  XXVI, 
p.  143.) 

XXIII.  Eeports  by  consuls. 
XXIV.  Communications   with   offi- 
cials.    (See  Art.  XXVIII, 
p.  144.) 

XXV.  Eights  of  United  States 
citizens.  (See  Art. 
XXVII,  p.  144.) 

XXVI.  Merchant     vessels     in     Chi- 
nese   waters.       (See     Art. 
XIII,  p.  139.) 
XXVII.  Shipwrecks,  etc.    (See  Art. 

XIII,   p.    139.) 
XXVIII.  Embargo. 

XXIX.  Control  over  seamen.    (See 

Art.  XVIII,  p.  140.) 
XXX.  Official          correspondence. 
(See    Art.    VII,    p.    137.) 
XXXI.  Communications.   (See  Art. 

VIII,  p.  137.) 

XXXII.  Naval   vessels   in     Chinese 
waters.     (See  Art.  IX,  p. 
137.) 
XXXILT.  Clandestine       trade.     (See 

Art.  XIV,  p.  139.) 
XXXIV.  Duration;    ratification. 


APPENDIX    II. 


631 


1858. 
TREATY  OF  PEACE,,  AMITY,  AND  COMMERCE.1 

Concluded  June  18,  1858;  ratification  advised  ~by  the  Senate  Decem- 
ber 15, 1858;  ratified  by  the  President  December  21,  1858;  rati- 
fications exchanged  August  16,  1859 ;  proclaimed  January  26, 
1860.  (Treaties  and  Conventions,  1889,  p.  159.) 

U.  S.  Treaties  1904,  p.  135;   12  Stats,  at  Large,  1023. 


AETICLES. 

I.  Declaration  of  amity.  XVI. 

II.  Deposit  of  treaty.  XVII. 

III.  Promulgation.  XVIII. 

IV.  Diplomatic  privileges.  XIX. 
V.  Visit   of  minister  to   capi-  XX. 

tal.  XXI. 

VI.  Residence  of  Minister  at  the  XXII. 

capital.  XXIII. 

VII.  Correspondence.  XXIV. 

VIII.  Personal  interviews.  XXV. 

IX.  Naval  vessels    in    Chinese  XXVI. 

waters. 

X.  Consuls  authorized.  XXVII. 
XI.  United    States    citizens    in 

China.     •  XXVIII. 
XII.  Privileges    in    open    ports. 

XIII.  Shipwrecks;   pirates.  XXIX. 

XIV.  Open     ports;      clandestine  XXX. 

trade  prohibited. 
XV.  Commerce   permitted;    tar- 
iff. 


Tonnage   duties. 

Pilots,  etc. 

Control  of  ships,  etc. 

Ships'   papers,  etc. 

Customs  examinations. 

Ee-exportation. 

Payment   of   duties. 

Transshipment  of  goods. 

Collection  of  debts. 

Chinese  teacher,  etc. 

Trade  with  China  in  case 
of  war. 

Eights  of  United  States 
citizens. 

Communications  with  of- 
ficers. 

Freedom  of  religion. 

Most  favored  nation  priv- 
ileges to  United  States 
citizens;  ratification. 


1858. 
TREATY  ESTABLISHING  TRADE  REGULATIONS  AND  TARIFF. 

Concluded  November  8,  1858;  ratification  advised  by  the  Senate 
March  1,  1859;  ratified  by  the  President  March  3,  1859;  ratifi- 
cations exchanged  August  15,  1859.  (Treaties  and  Conven- 
tions, 1889,  p.  169.) 

U.  S.    Treaties  1904,  p.  145;  12  Stats,  at  Large,  1069. 
'See  Treaty  of  July  28,  1868,  and  Treaty  of  October  8,  1903. 


632 


APPENDIX    II. 


1858. 
CLAIMS  CONVENTION. 

Concluded  November  8,  1858;  ratification  advised  by  the  Senate 
March  I,  1859;  ratified  by  the  President  March  3,  1859;  rati- 
fications exchanged  August  15,  1859.  (Treaties  and  Conven- 
tions, 1889,  p.  178.) 

U.  S.  Treaties  1904,  p.  155;  12  Stats,  at  Large,  1081. 
The  arrangement  made  at  Tien-Tsin,  and  called  a  convention  by 
the  preamble  to  this  convention,  was  made  through  the  medium  of 
correspondence,  and  the  supplemental  convention  of  November  8, 
1858,  was  entered  into  to  carry  it  into  effect.  Under  this  conven- 
tion $735,238.97  was  paid  to  the  United  States  minister  to  China, 
and  a  commission  appointed  to  decide  upon  the  claims.  The  com- 
mission awarded  claimants  $489,187.95,  and  the  Chinese  govern- 
ment refusing  to  receive  the  surplus  it  was  finally  transmitted  to 
the  United  States  and  invested  in  government  bonds.  From  this 
fund  there  was  paid  out  by  the  Secretary  of  State  for  claims  against 
China  $281,319.64,  and  on  April  24,  1885,  the  balance,  amounting 
to  $453,400.90,  was  returned  to  the  Chinese  minister  at  Washington. 

1868. 
TREATY  OF  TRADE,  CONSULS  AND  EMIGRATION.1 

Concluded  July  28,  1868;  ratification  advised  by  the  Senate  with 
amendments  July  24,  1868;  amendments  incorporated  in  the 
treaty  July  28,  1868;  ratified  by  the  President  October  19, 
1868;  ratifications  exchanged  November  23,  1869;  proclaimed 
February  5, 1870.  (Treaties  and  Conventions,  1889,  p.  179.) 

IT.  S.  Treaties  1904,  p.  155;  16  Stats,  at  Large,  739. 


1  See  Treaty  of  June  18,  1858,  and 
Treaty  of  October  8,  1903.  See,  also, 
Chae  Chan  Ping  v.  United  States, 
130  TJ.  S.  581,  9  Sup.  Ct.  Eep.  623, 
32  L.  ed.  1068;  Ex  parte  Lau  Ow 
Bew,  141  U.  S.  583,  12  Sup.  Ct.  Kep. 
43,  35  L.  ed.  868;  Lau  Ow  Bew  v. 
United  States,  144  U.  S.  47,  12  Sup. 
Ct.  Eep.  517,  36  L.  ed.  340;  Fong 
Goie  Ting  v.  United  States,  149  U. 
S.  698,  13  Sup.  Ct.  Eep.  1016,  37 


L.  ed.  905;  In  re  Ah  Fong,  3  Saw. 
144,  Fed.  Gas.  No.  102;  Chapman  v. 
Toy  Long,  4  Saw.  28,  Fed.  Gas.  No. 
2610;  Baker  v.  Portland,  5  Saw.  566, 
Fed.  Cas.  No.  777;  In  re  Wong  Yung 
Quy,  6  Saw.  237,  47  Fed.  717;  In 
re  Ah  Chong,  6  Saw.  451,  2  Fed. 
733;  In  re  Parrott,  6  Saw.  349,  1 
Fed.  481;  United  States  v.  Douglas, 
17  Fed.  634. 


APPENDIX    II. 


633 


AETICLES. 


I.  Jurisdiction      over      land      in 

China. 

II.  Eegulation  of  commerce. 
III.  Chinese    consuls. 
IV.  Eeligious    freedom. 
V.  Voluntary  emigration. 


VI.  Privileges  of  travel  and  resi- 
dence. 

VII.  Education. 

VIII.  Internal       improvements       in 
China. 


1880. 
IMMIGRATION  TREATY.1 

Concluded  November  17,  1880;  ratification  advised  by  the  Senate 
May  5,  1881;  ratified  by  the  President  May  9,  1881;  ratifica- 
tions exchanged  July  19,  1881;  proclaimed  October  5,  1881. 
(Treaties  and  Conventions,  1889,  p.  182.) 

U.  S.  Treaties  1904,  p.  159;  22  Stats,  at  Large,  739. 

AETICLES. 

I.  Suspension  of  Chinese  immigra-       III.  Protection  of     Chinese    in    the 

tion.  United  States. 

II.  Eights  of  Chinese  in  the  United       IV.  Notification  of  legislation;  rati- 

States.  fication. 


1  See    Treaty   of    1894.      See,   also, 
"ederal  cases    Chew  Heong  v.  United 
States,     112;   U.     S.     536,     5     Sup. 
.  Eep.  255,  28  L.  ed.  770;  Tick  Wo 
Hopkins,  118  U.  S.  356,  6  Sup.  Ct. 
;p.    1064,   30   L.    ed.   220;    Baldwin 
T.  Franks,  120  U.  S.  678,  7  Sup.  Ct. 
Eep.  656,  763,  30  L.  ed.  766;  United 
States    v.    Jung    Ah    Lung,    124    U. 
S.  621,  8  Sup.  Ct.  Eep.  663,  31  L.  ed. 
591;     Chae     Chan     Ping     v.     United 
States,    130    U.  S.    581,    9    Sup.  Ct. 
tep.    623,    32    L.    ed.     1068;     Wan 
Jhing     v.    United    States,    140     U. 
424,  11  Sup.  Ct.  Eep.  729,  35  L. 
I.  503;  Ex  parte  Lau  Ow  Bew,  141 
I.  S.  583,  12  Sup.  Ct.  Eep.  43,  35  L. 
ed.    868;    Lau    Ow    Bew    v.    United 
States,  144  U.  S.  47,  12  Sup.  Ct.  Eep. 
517,  36  L.  ed.  340;  Fong  Yue  Ting 
v.  United  States,  149  U.  S.  698,  13 
Sup.   Ct.   Eep.   1016,   37  L.   ed.   905; 
In  re  Ah  Kee,  22   Blatchf.   520,   22 
Fed.   519;   In   re   Ah   Lung,   9   Saw. 
306,  18  Fed.   28;   In  re  Leong  Tick 


Dew,  10  Saw.  38,  19  Fed.  490;  In 
re  Ah  Quan,  10  Saw.  222,  21  Fed. 
182;  In  re  Shong  Toon,  10  Saw.  268, 
21  Fed.  386;  In  re  Ah  Moy,  10  Saw. 
345,  21  Fed.  785;  In  re  Chew  Heong, 
10  Saw.  361,  21  Fed.  791;  In  re 
Quong  Woo,  7  Saw.  526,  13  Fed.  229; 
Case  of  Chinese  Merchant,  7  Saw. 
546,  13  Fed.  605;  In  re  Moncan,  8 
Saw.  350,  14  Fed.  44;  In  re  Ho  King, 
8  Saw.  438,  14  Fed.  724;  United 
States  v.  Douglass,  17  Fed.  634;  In 
re  Chin  Ah  On,  9  Saw.  343,  18  Fed. 
506;  In  re  Pong  Ah  Chee,  18  Fed. 
527;  In  re  Tung  Yeong,  9  Saw.  620, 
19  Fed.  184;  Case  of  Chinese  Wife, 
21  Fed.  785;  Case  of  Chinese  La- 
borer, 21  Fed.  791;  In  re  Ah  Ping, 
23  Fed.  329;  In  re  Chae  Chan  Ping, 
13  Saw.  486,  36  Fed.  431;  In  re 
Chung  Toy  Ho,  42  Fed.  398,  9  L.  E. 
A.  204;  United  States  v.  Ah  Fawn, 
57  Fed.  591;  United  States  v.  Yong 
Yew,  83  Fed.  832. 


634  APPENDIX    II. 

1880. 
TREATY  AS  TO  COMMERCIAL  INTERCOURSE  AND  JUDICIAL  PROCEDURE. 

Concluded  November  17,  1880;  ratification  advised  by  the  Senate 
May,  5,  1881;  ratified  by  the  President  May  9,  1881;  ratifica- 
tions exchanged  July  19,  1881;  proclaimed  October  5,  1881. 
(Treaties  and  Conventions,  1889,  p.  184.) 

U.  S.  Treaties  1904,  p.  161;  22  Stats,  at  Large,  828. 

ARTICLES. 

I.  Commercial  relations.  III.  Equality    of    duties. 

II.  Importation  of  opium  forbidden.       IV.  Trials    of    actions    in    China. 

1894. 
CONVENTION  REGULATING  CHINESE  IMMIGRATION.1 

Concluded  March  17,  1894;  ratification  advised  by  the  Senate  Au- 
gust 13,  1894;  ratified  by  the  President  August  22,  1894;  rati- 
fications exchanged  December  7,  1894;  proclaimed  December 
8,  1894 

U.  S.  Treaties  1904,  p.  163;  28  Stats,  at  Large,  1210. 

(This  treaty  was  denounced  by  China,  to  take  effect  December  7, 
1904.) 

AETICLES. 

I.  Immigration    of    Chinese   labor-  IV.  Protection     of     Chinese     in    the 

ers  prohibited  for  ten  years.  United  States. 

II.  Kegulations    for    return    to    the  V.  Kegistration      of      citizens      in 

United  States.  China. 

III.  Classes  of  Chinese  not  affected.  VI.  Duration. 

1903. 

TREATY  AS  TO  COMMERCIAL  RELATIONS. 

Concluded  October  8,  1903;  ratification  advised  by  Senate  Decem- 
ber 18,  1903;  ratified  by  President  January  12,  1904;  ratifica- 
tions exchanged  January  13,  1904;  proclaimed  January  13, 
1904. 

U.  S.  Treaties  1904,  p.  166;  33  Stats,  at  Large,  2208. 

'See  United   States  v.  Lee  Yen  Tai,  113  Fed.  465,  51   C.  C.  A.  299; 
In  re  Lee  Gon  Yung,  111  Fed.  998. 


APPENDIX    II. 


635 


ARTICLES. 


I.  Diplomatic   privileges. 
II.  Consular  privileges. 
III.  Citizens  in  China. 
IV.  Abolition    of    liTcin. 
V.  Tariff  duties. 
VI.  Establishment   of  warehouses 

by  United  States  citizens. 
VII.  Mining  regulations. 
VIII.  Drawback  certificates. 
IX.  Trademarks. 

X.  Patents. 
XI.  Copyrights. 

XII.  Navigation  of  inland  waters, 
and    making     Mukden     and 
Antung  open  ports. 
[II.  Uniform  coinage. 


XIV.  Religious  liberty  and  conces- 

sion to  missionary  societies. 

XV.  Reformation   of  judicial   sys- 

tem;  extraterritorial  rights. 
XVI.  Morphia  and  instruments  for 

its    injection. 

XVII.  Existing  treaties  continued  in 
force;  duration;  revision  of 
annexed  tariff;  and  ratifica- 
tion. 

ANNEXES. 

I.  Opium  and  salt. 
II.  Native  customs  offices. 
III.  Tariff  schedule. 

Note   change   of  Rule   II. 


COLOMBIA. 

The  Republic  of  Colombia,  established  in  1819,  was  divided  in 
[ovember,  1831,  into  three  independent  republics,  New  Grenada, 
renezuela,  and  Ecuador.     In  1862  its  name  was  changed  to  the 
United  States  of  Colombia,  and  in  1886  the  states  were  abolished  and 
the  country  became  the  Republic  of  Colombia.     The  treaties  with 
New  Grenada  are  given  in  chronological  order  with  those  of  Co- 
lombia. 

1824. 
TREATY  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  October  3, 1824;  ratification  advised  by  the  Senate  March 
3,  1825;  ratified  by  the  President  March  7 ,  1825;  ratifications 
exchanged  May  27,  1825;  proclaimed  May  31,  1825.  (Treaties 
and  Conventions,  1889,  p.  186.) 

IT.   S.   Treaties  1904,   p.   194;   8   Stats,   at  Large,  306. 

This  treaty  of  thirty-one  articles  expired  by  its  own  limitation 
October  3,  1836. 


636 


APPENDIX    II. 


(NEW  GRANADA.) 

1846. 
TREATY  OF  PEACE,  AMITY,  NAVIGATION,  AND  COMMERCE. 

Concluded  December  12,  1846 ;  ratification  advised  by  the  Senate 
June  3,  1848;  ratified  ~by  the  President  June  10,  1848;  ratifica- 
tions exchanged  June  10,  1848;  proclaimed  June  12,  1848. 
(Treaties  and  Conventions,  1889,  p.  195.) 

IT.  S.  Treaties  1904,  p.   194;   9  Stats,  at  Large,   Treaties,  79. 
ABTICLES. 


I.  Amity. 
II.  Most  favored  nation  clause. 

III.  Commerce   and  navigation. 

IV.  Mutual    privileges    of    ship- 

ping. 

V.  Customs  duties. 
VI.  Declaration     of    reciprocal 

treatment. 

VII.  Freedom  of  trade. 
VIII.  Embargo. 

IX.  Asylum  to  vessels. 
X.  Captures  by  pirates. 
XI.  Shipwrecks. 
XII.  Disposal  of  property. 

XIII.  Mutual  protection. 

XIV.  Eeligious  freedom. 

XV.  Neutrality;  free  ships,  free 

goods. 

XVI.  Enemy's    property. 
XVII.  Contraband  goods. 
XVIII.  Trade    by    neutrals. 

XIX.  Confiscation      of      contra- 
band. 


XX.  Blockade. 
XXI.  Visitation  and  search. 
XXII.  Proof     of     nationality    of 

vessels. 

XXIII.  Vessels  under  convoy. 
XXIV.  Prize  cases. 

XXV.  Conduct  of  hostilities. 
XXVI.  Letters  of  marque. 
XXVII.  Protection  in  case  of  war. 
XXVIII.  Confiscation  prohibited. 
XXIX.  Diplomatic  privileges. 

XXX.  Consular  officers. 

XXXI.  Consular   rights.    ' 

XXXII.  Consular  exemptions. 

XXXIII.  Deserters  from  ships. 

XXXIV.  Agreement     for     consular 

convention. 

XXXV.  Isthmus  of  Panama;  dura- 
tion; violations. 
XXXVT.  Eatification. 
Additional    article.     Acceptance    of 
nationality  of  vessels. 


1850. 
CONSULAR  CONVENTION. 

Concluded  May  4,  1850;  ratification  advised  by  the  Senate  Septem- 
ber 24,  1850;  ratified  by  the  President  November  14,  1850; 
ratifications  exchanged  October  30,  1851;  proclaimed  Decem- 
ber 5, 1851.  (Treaties  and  Conventions,  1889,  p.  206.) 

U.  S.  Treaties  1904,  p.  206;   10  Stats,  at  Large,  Treaties,  80. 


APPENDIX   II.  637 

AKTICLES. 

I.  Officers   authorized.  VI.  Legal  status  of  consuls. 

II.  Exequaturs.  VII.  Passports. 

III.  Functions.  VIII.  Eatification. 

IV.  Good  offices.  IX.  Duration. 

V.  Prerogatives,  exemptions,  etc. 

1857. 
CLAIMS  CONVENTION. 

Concluded  September  10,  1857 ;  ratification  advised  by  the  Senate 
with  amendments  March  8,  1859;  ratified  by  the  President 
March  12, 1859;  time  for  exchange  of  ratifications  extended  by 
the  Senate  May  8,  1860;  ratifications  exchanged  November  5, 
1860;  proclaimed  November  8,  1860.  (Treaties  and  Conven- 
tions, 1889,  p.  210.) 

IT.  S.  Treaties  1904,  p.  211;   12  Stats,  at  Large,  985. 

The  commission  under  this  treaty  met  at  Washington  June  10, 
L861,    and    adjourned    March    9,     1862.     Amount    of    awards 
6,235.47.     Not  having  completed  all  the  cases  presented  to  them 
the  following  treaty  was  concluded,  extending  the  commission. 


(COLOMBIA.) 

1864. 
CLAIMS  CONVENTION. 

Concluded  February  10,  1864;  ratification  advised  by  the  Senate 
June  10, 1864;  ratified  by  the  President  July  9,  1864;  time  for 
exchange  of  ratifications  extended  by  the  Senate  June  25, 1864; 
ratifications  exchanged  August  19,  1865;  proclaimed  August 
19, 1865.  (Treaties  and  Conventions,  1889,  p.  213.) 

U.  S.  Treaties  1904,  p.  211;  13  Stats,  at  Large,  685. 

Under  this  convention  a  new  commission  was  organized,  which  met 
at  Washington  August  4,  1865,  and  adjourned  May  19,  1866.  The 
awards  amounted  to  $88,267.68. 


638 


APPENDIX    II. 


1888. 
EXTRADITION  CONVENTION. 

Concluded  May  7,  1888;  ratification  advised  by  the  Senate  with 
amendments  March  26,  1889;  ratification  with  amendments 
proposed  by  Colombia  advised  by  the  Senate  February  27, 
1890;  ratified  by  the  President  March  12,  1890;  ratifications 
exchanged  November  12,  1890;  proclaimed  February  6,  1891. 

U.  S.  Treaties  1904,  p.  211;  26  Stats,  at  Large,  1534. 
AETICLES. 


I.  Eeciprocal   delivery   of   accus- 
ed. 

II.  Extraditable  crimes. 
III.  Proceedings. 
IV.  Persons  under  arrest. 

V.  Political  offenses. 
VI.  Eequisitions   and   surrender. 


VII.  Temporary,  detention. 
VIII.  Evidence  required. 
IX.  Delivery  of  foreigners. 

X.  Persons   not   to   be   delivered. 
XL  Persons   under  obligations. 
XII.  Expenses. 
XIII.  Duration;  ratification. 


COSTA  RICA. 

1851. 
TREATY  OF  FRIENDSHIP,  COMMERCE  AND  NAVIGATION. 

Concluded  July  10,  1851;  ratification  advised  by  the  Senate  March 
11,  1852;  ratified  by  the  President  May  25,  1852;  ratifications 
exchanged  May  26,  1852;  proclaimed  May  26,  1852.  (Treaties 
and  Conventions,  1889,  p.  222.)  . 

U.  S.  Treaties  1904,  p.  215;    10  Stats,  at  Large,  Treaties,  18 


AKTICLES. 

I.  Amity.  VIII. 

II.  Freedom    of     commerce     and  IX. 

navigation. 

III.  Most    favored     nation     privi-  X. 

leges. 

IV.  No   discrimination  in   duties.  XL 

V.  Tonnage   duties.  XII. 

VI.  No   discrimination   on  vessels.  XIII. 

VII.  Equal  trade  privileges.  XIV. 


Equal    treatment    of    citizens. 

Exemption  from  military  ser- 
vice, etc. 

Consular  and  diplomatic  privi- 
leges. 

Eights  in  case  of  war. 

Property  rights. 
.Duration. 

Eatification. 


APPENDIX    II.  639 

1860. 
CLAIMS  CONVENTION. 

Concluded  July  2, 1860;  ratification  advised  ~by  the  Senate  January 
16,  1861;  ratified  by  the  President  November  7,  1861;  time 
for  exchange  of  ratifications  extended  by  the  Senate  March 
12,  1861;  ratifications  exchanged  November  9,  1861;  pro- 
claimed November  11,  1861.  (Treaties  and  Conventions,  1889, 
p.  227.) 

U.  S.  Treaties  1904,  p.  220;  12  Stats,  at  Large,  1135. 

This  convention  of  nine  articles  provided  for  a  commission  of 
three,  who  met  at  Washington  February  8,  1862,  and  adjourned 
November  6,  1862.  The  amount  awarded  against  Costa  Rica  was 
$25,704.14. 

1900. 

PROTOCOL  FOR  THE  CONSTRUCTION  OF  AN  INTEROCEANIC  CANAL. 

Concluded  December  1,  1900. 

IT.  S.  Treaties  1904,  p.  220. 

It  is  agreed  between  the  two  governments  that  when  the  President 
of  the  United  States  is  authorized  by  law  to  acquire  control  of  such 
portion  of  the  territory  now  belonging  to  Costa  Rica  as  may  be  de- 
sirable and  necessary  on  which  to  construct  and  protect  a  canal  of 
depth  and  capacity  sufficient  for  the  passage  of  vessels  of  the  great- 
est tonnage  and  draft  now  in  use,  from  a  point  near  San  Juan  del 
Norte  on  the  Caribbean  Sea,  via  Lake  Nicaragua  to  Brito  on  the 
Pacific  Ocean,  they  mutually  engage  to  enter  into  negotiations 
with  each  other  to  settle  the  plan  and  the  agreements,  in  detail, 
found  necessary  to  accomplish  the  construction  and  to  provide  for 

ie  ownership  and  control  of  the  proposed  canal. 

As  preliminary  to  such  future  negotiations  it  is  forthwith  agreed 
that  the  course  of  said  canal  and  the  terminals  thereof  shall  be  the 
same  that  were  stated  in  a  treaty  signed  by  the  plenipotentiaries  of 
the  United  States  and  Great  Britain  on  February  5,  1900,  and  now 
pending  in  the  Senate  of  the  United  States  for  confirmation,  and 
that  the  provisions  of  the  same  shall  be  adhered  to  by  the  United 
States  and  Costa  Rica. 


640  APPENDIX    II. 

In  witness  whereof,  the  undersigned  have  signed  this  protocol 
and  have  hereunto  affixed  their  seals. 

Done  in  duplicate  at  Washington  this  first  day  of  December, 
1900. 

JOHN  HAY.       [Seal.] 
J.  B.  CALVO.     [Seal] 


CUBA. 

1902. 

COMMERCIAL  CONVENTION.1 

Concluded  December  11, 1902;  ratification  advised  ~by  Senate  March 
19,  1903;  ratified  by  President  March  30,  1903;  ratifications 
exchanged  March  31,  1903;  proclaimed  December  17,  1903. 

IT.  S.  Treaties  1904,  p.  221;  33  Stats,  at  Large,  2136. 

AETICLES. 

I.  Articles  on  free  list.  V.  Eegulations    to    protect    reve- 

II.  Articles  of  Cuba  admitted  at  nue. 

reduction    of     twenty     per  VI.  Tobacco, 

cent.  VII.  Similar  articles. 

III.  Articles  of  United  States  ad-  VIII.  Eates    of     duty     to     continue 

mitted      at      reduction      of  preferential, 

twenty  per  cent.  IX.  National  or  local  taxes. 

IV.  Articles  of  United  States  ad-  X.  Changes  of  tariff;  revision  of 

mitted     at     reductions     of  treaty, 

twenty-five,       thirty,       and  XI.  Eatification;  duration, 
forty  per  cent,  respectively. 

1903. 
SUPPLEMENTARY  COMMERCIAL  CONVENTION. 

Concluded  January  26,  1903;  ratification  advised  by  the  Senate 
February  16,  1903;  ratified  by  the  President  March  30,  1903; 
ratifications  exchanged  March  31,  1903;  proclaimed  Decem- 
ber 17, 1903. 

U.  S.  Treaties  1904,  p.  225;  33  Stats,  at  Large,  2145. 

1  Congress  by  an  act  approved  December  17,  1903,  gave  its  approval  to 
this  convention. 


APPENDIX    II. 


641 


This  treaty  contains  one  article,  extending  for  two  months  from 
January  31,  1903,  ratification  of  commercial  treaty  of  December 
11,  1902. 

1903. 

AGREEMENT  FOR  THE  LEASE  TO  THE  UNITED  STATES  OF  LANDS  IN 
CUBA  FOB  COALING  AND  NAVAL  STATIONS. 

Signed  by  the  President  of  Cuba  February  16,  1903,  and  by  the 
President  of  the  United  States  February  23, 1903. 

U.    S.    Treaties    1904,   p.    225. 


I.  Lease  of  land. 
H.  Waters. 


ARTICLES. 

III.  Jurisdiction. 

1903. 


EMBODYING  THE  PROVISIONS  DEFINING  THE  FUTURE  RELATIONS  OF 
THE  UNITED  STATES  WITH  CUBA  CONTAINED  IN  THE  ACT  OF 
CONGRESS,  APPROVED  MARCH  2,  1901,  MAKING  APPROPRIATION 
FOR  THE  ARMY. 

Signed  May  22, 1902;  ratifications  advised  by  the  Senate,  March  22, 
1904;  ratified  by  the  President,  June  25,  1904;  ratified  by 
Cuba  June  20,  1904;  ratificatimis  exchanged  at  Washington 
July  1,  1904;  proclaimed  July  2,  1904. 

33  Stats,  at  Large,  pt.  2,  p.  2248. 


ARTICLES. 


I.  Treaty  rights    of    Cuba     with 

other  powers. 

II.  Contraction  of  debts  limited. 
III.  United    States    granted    right 

to    intervene,    etc. 
IV.  Validation  of  military  acts. 


V.  Extension  of  sanitary  plans  of 

cities. 

VI.  Title  to  Island  of  Pines. 
VII.  Naval  stations  for  the  United 

States. 
VIII.  Ratification. 


1904. 

SUPPLEMENTARY  CONVENTION  EXTENDING  TIME  FOR  RATIFICATION 
•      OF  TREATY  OF  MAY  22,  1903. 


33  Stats,  at  Large,  pt.  2,  p.  2261. 


Treaties— 41 


642  APPENDIX    II. 

1904. 
EXTRADITION. 

Signed  at  Washington  April  6,  1904;  ratification  advised  by  the 
Senate  April  26,  1904;  ratified  by  the  President  January  24, 
1905;  ratified  by  Cuba,  January  16,  1905;  ratifications  ex- 
changed at  Washington  January  31,  1905;  proclaimed  Feb- 
ruary 8,  1905. 

33  Stats,  at  Large,  pt.  2,  p.  2265. 

AETICLES. 

I.  Reciprocal  delivery  of  persons  VII.  No  delivery  if  trial  barred  by 

charged  with   crime.  limitations. 

II.  Extraditable  crimes.  VIII.  Trials  to  be  only  for  offenses 

III.  Requisitions.  for  Which  extradited. 

IV.  Application  for  provisional  ar-  IX.  Disposal     of     articles     seized 

rest.  with  person. 

V.  Neither  country  bound  to  de-  X.  Persons      claimed     by     other 

liver  up  its  own  citizens.  countries. 

VI.  No  surrender  for  political  of-  XI.  Expenses, 

fenses.  XII.  Effect. 

1904. 
PROTOCOL  TO  EXTRADITION  TREATY  AMENDING  SPANISH  TEXT. 

Signed  at  Washington,  December  6, 1904;  ratification  advised  by  the 
Senate  December  15,  1904;  ratified  by  the  President  January 
24,  1905;  ratified  by  Cuba,  January  16,  1905;  ratifications 
exchanged  at  Washington  January  31,  1905;  proclaimed  Feb- 
ruary 8,  1905. 

33  Stats,  at  Large,  pt.  2,  p.  2273. 

1903. 

LEASE  TO  THE  UNITED  STATES  BY  CUBA  OF  LAND  AND  WATER  FOR 
NAVAL  OR  COALING  STATIONS  IN  GUANTANAMO  AND  BAHIA 
HONDA. 

Signed  July  2,  1903;  approved  by  the  President  October  2,  1903; 
ratified  by  the  President  of  Cuba  August  17,  1903 ;  ratifications 
exchanged  October  6,  1903. 

U.  S.  Treaties  1904,  p.  227. 


APPENDIX    II. 


643 


AETICLES. 

I.  Kental;    acquirement  of    land;         IV.  Fugitives. 

payment.  V.  Duties,  etc. 

II.  Survey.  VI.  Jurisdiction. 

HI.  Occupation.  VII.  Ratification. 


DENMARK. 

1826. 
CONVENTION  OF  FRIENDSHIP,  COMMERCE  AND  NAVIGATION.1 

Concluded  April  26, 1826;  ratification  advised  by  the  Senate  May  4, 
1826;  ratified  by  the  President  May  6,  1826;  ratifications  ex- 
changed August  10,  1826;  proclaimed  October  14,  1826. 
(Treaties  and  Conventions,  1889,  p.  231.) 

U.  S.  Treaties  1904,  p.  229;  8  Stats,  at  Large,  340. 

(This  convention  was  abrogated  by  notice  April  15,  1856,  and 
renewed  by  the  convention  of  April  11,  1857,  except  Article  V.) 


•AETICLES. 


I.  Most   favored  nation   clause. 
II.  Freedom  of  trade. 

III.  Equality  as  to  shipping. 

IV.  Import  and  export  duties. 
V.  Sound  and  belts  dues. 

VI.  Trade  with  Danish  colonies. 


VII.  Property  rights. 
VIII.  Consular  officers. 
IX.  Consular  privileges. 
X.  Consular  exemptions. 
XI.  Duration. 
XII.  Eatification. 


1830. 

CLAIMS  CONVENTION. 

Concluded  March  28,  1830;  ratification  advised  by  the  Senate  May 
29,  1830;  ratified  by  the  President  June  2,  1830;  ratifications 
exchanged  June  5,  1830;  proclaimed  June  5,  1830.  (Treaties 
and  Conventions,  1889,  p.  235.) 

U.   S.   Treaties   1904,  p.   233;    8   Stats,   at   Large,  402. 

By  this  convention  Denmark  renounced  the  claims  of  its  subjects 
against  the  United  States   and  agreed  to  pay  an  indemnity  of 


JSee    Bartram    v.    Eobertson,    122 
F.  S.  116,  7  Sup.  Ct.  Eep.  1115,  30 


L.     ed.     1118;     Thingvalla     Line     v. 
Cnited  States,  24  Ct.  of  01.  255. 


644  APPENDIX    II. 

$650,000  for  claims  of  United  States  citizens.  The  commission  pro- 
vided for  met  in  Washington  April  4,  1831,  and  held  its  last  ses- 
sion March  23,  1833. 

1857. 
CONVENTION  DISCONTINUING  THE  SOUND  DUES. 

Concluded  April  11,  1857 ;  ratifications  advised  Toy  the  Senate  Jan- 
uary 5,  1858;  ratified  by  the  President  January  7,  1858;  rati- 
fications exchanged  January  12,  1858;  proclaimed  January 
13,  1858.  (Treaties  and  Conventions,  1889,  p.  238.) 

U.  S.  Treaties  1904,  p.  234;   11  Stats,  at  Large,   719. 

AETICLES. 

I.  Sound    and    belts    dues    abolish-         IV.  Most     favored     nation     privi- 

ed.  leges. 

II.  Lights,  buoys  and  pilots.  V.  Convention  of  1826  revived. 

III.  Payment  by  the  United  States.         VI.  Effect. 

VII.  Katification. 


1861. 

CONSULAR  CONVENTION. 

Concluded  July  11,  1861;  ratification  advised  by  the  Senate  July 
17,  1861;  ratified  ~by  the  President  August  25,  1861;  ratifica- 
tions exchanged  September  18,  1861;  proclaimed  September 
20,  1861.  (Treaties  and  Conventions,  1889,  p.  240.) 

U.  S.  Treaties   1904,  p.  236;   13  Stats,  at  Large,  605. 

(This  convention  consisted  of  two  additional  articles  to  the  gen- 
eral convention  of  commerce  and  navigation,  1826,  renewed  April 
11,  1857,  extending  the  powers  of  consuls.) 

AETICLES. 

I.  Authority  of  consuls  over  ship-      It.  Deserters    from    ships;    ratifica- 
ping  disputes.  tion. 


APPENDIX   II.  645 

1872. 
NATURALIZATION  CONVENTION. 

Concluded  July  20,  1872;  ratification  advised  ~by  the  Senate  Jan- 
uary 13,  1873;  ratified  by  the  President  January  22,  1873; 
ratifications  exchanged  March  14,  1873;  proclaimed  April  15, 
1873.  (Treaties  and  Conventions,  1889,  p.  241.) 

U.  S.   Treaties  1904,  p.  238;    17  Stats,   at  Large,  941. 

AETICLES. 

T.  Naturalization  recognized.  IV.  Duration. 

II.  Eeadmission  to  former  status.  V.  Ratification. 

III.  Renunciation  of  acquired  status. 

1886. 
AGREEMENT  FOR  MUTUAL  EXEMPTION  OF  VESSELS  FROM  READMEAS- 

UREMENT,. 

Signed  at  Washington,  February  26, 1886. 
U.  S.  Treaties  1904,  p.  240. 

I 

|   AGREEMENT  SUBMITTING  CLAIM  OF  CARLOS  BUTTERFIELD  &  Co.  TO 

ARBITRATION. 

Concluded  December  6,  1888;  ratification  advised  by  the  Senate 
February  11,  1889;  ratified  by  the  President  April  23,  1889: 
ratifications  exchanged  May  23, 1889;  proclaimed  May  24, 1889. 

U.  S.  Treaties  1904,  p.  240;  26  Stats,  at  Large,  1490. 

By  this  agreement  the  claim  of  Butterfield  &  Co.  for  indemnity 
for  seizure  of  vessels  by  the  Danish  Colonial  authorities  of  St. 
Thomas,  West  Indies,  was  referred  to  Sir  Edmund  Monson,  by 
whom  it  was  disallowed. 

1892. 
TRADEMARK  CONVENTION. 

Concluded  June  15,  1892;  ratification  advised  by  the  Senate  July 
21,  1892;  ratified  by  the  President  July  29,  1892;  ratifications 
exchanged  September  28,  1892;  proclaimed  October  12,  1892. 

U.  S.  Treaties  1904,  p.  241;   27  Stats,  at  Large,  963. 


646  APPENDIX   II. 


ABTICLES. 

I.  Eeciprocal  rights.  III.  Duration. 

II.  Formalities.  IV.  Eatification. 


1902. 
EXTRADITION  TREATY. 

Concluded  January  6,  1902;  ratification  advised  by  Senate  Jan- 
uary 30, 1902;  ratified  by  President  February  26, 1902;  ratifica- 
tions exchanged  April  16,  1902;  proclaimed  April  17,  1902. 

U.  S.  Treaties  1904,  p.  242;  32  Stats,  at  Large,  1906. 

AETICLES. 

I.  Delivery  of  accused.  VIII.  Prior  offenses. 

II.  Extraditable  crimes.  IX.  Property  seized  with  fugitive. 

III.  Procedure.  X.  Persons     claimed     by     other 

IV.  Provisional  detention.  countries. 
V.  Nondelivery  of  citizens.  XL  Expenses. 

VI.  Political  offenses.  XII.  Eatification;  duration. 

VII.  Limitations. 


1905. 

EXTRADITION — SUPPLEMENTARY    TREATY    BETWEEN    THE    UNITED 
STATES   AND  DENMARK  FOR  THE  EXTRADITION  OF  CRIMINALS. 

Signed  at  Washington,  November  6,  1905;  ratification  advised  by 
the  Senate,  December  7,  1905;  ratified  by  the  President,  Feb- 
ruary 13,  1906;  ratified  by  Denmark,  December  14,  1905;  rati- 
fications exchanged  at  Washington,  February  19,  1906;  pro- 
claimed February  19,  1906. 

Treaties  and  Proclamations,  2887;    34  Stats,  at  Large,  part  3. 

AETICLES. 

I.  Extradition  provisions  extended         II.  Additional  extraditable  crime. 
to  island  possession  and  colo-       III.  Exchange  of  ratifications, 
nies. 


APPENDIX   II.  647 


DOMINICAN  REPUBLIC. 

1867. 

CONVENTION  OF  AMITY,  COMMERCE  AND  NAVIGATION,  AND  EXTRADI- 
TION. 

Concluded  February  8,  1867;  ratification  advised  by  the  Senate 
March  20,  1867;  ratified  by  the  President  July  31,  1867;  rati- 
fications exchanged  October  5,  1867;  proclaimed  October  24, 
1867.  (Treaties  and  Conventions,  1889,  p.  244.) 

U.  S.  Treaties  1904,  p.  246;   15  Stats,  at  Large,  473. 

This  convention  of  thirty-two  articles  terminated  January  13, 
1898,  by  notice  from  the  Dominican  government. 


ECUADOR. 

1839. 
TREATY  OF  PEACE,  FRIENDSHIP,  NAVIGATION  AND  COMMERCE. 

Concluded  June  13,  1839;  ratification  advised  by  the  Senate  July 
15,  1840;  ratified  by  the  President  July  31,  1840;  ratifications 
exchanged  April  9,  1842;  proclaimed  September  23,  1842. 
(Treaties  and  Conventions,  1889,  p.  255.) 

U.   S.   Treaties   1904,   p.   247;    8   Stats,   at   Large,  534. 

This  treaty  of  thirty-five  articles  was  abrogated  August  25,  1892, 
by  notice  from  the  Ecuadorian  government. 


1862. 
CLAIMS  CONVENTION. 


Concluded  November  25,  1862;  ratification  advised  by  the  Senate 
January  28,  1863;  ratified  by  the  President  February  13,  1863; 
ratifications  exchanged  July  27,  1864;  proclaimed  September 
8,  1864.  (Treaties  and  Conventions,  1889,  p.  265.) 

U.  S.  Treaties  1904,  p.  247 ;    13  Stats,  at  Large,  631. 


648  APPENDIX   II. 

Under  this  convention  of  seven  articles  the  commission  of  two 
members  and  an  arbitrator  met  at  Guyaquil,  August  22,  1864,  and 
terminated  its  session  August  17,  1865.  The  amount  awarded 
against  Ecuador  was  $94,799.56. 

1872. 
NATURALIZATION  CONVENTION. 

Concluded  May  6,  1872;  ratification  advised  by  the  Senate  May 
23,  1872;  ratified  by  the  President  May  25,  1872;  ratifications 
exchanged  November  6,  1873;  proclaimed  November  24,  1873. 
(Treaties  and  Conventions,  1889,  p.  267.) 

U.  S.  Treaties  1904,  p.  247;  18  Stats,  at  Large,  Treaties,  69. 

This  convention  of  seven  articles  was  abrogated  August  25,  1892. 
upon  notice  given  by  the  Ecuadorian  government. 

1872. 
EXTRADITION  CONVENTION. 

Concluded  June  28,  1872;  ratification  advised  by  the  Senate  Jan- 
uary 6,  1873;  ratified  by  the  President  January  10,  1873;  rati- 
fications exchanged  November  12,  1873;  proclaimed  December 
24, 1873.  (Treaties  and  Conventions,  1889,  p.  269.  ) 

U.  S.  Treaties  1904,  p.  248;  18  Stats,  at  Large,  Treaties,  72. 

AETICLES. 

I.  Persons  to  be  delivered.  V.  Procedure. 

II.  Extraditable  crimes.  VI.  Expenses. 

III.  Political  offenses,  etc.  VII.  Duration;     ratification. 

IV.  Persons  under  arrest  in  country 

where  found. 

1894. 

CONVENTION  FOR  ARBITRATION  OF  CLAIM  OF  JULIO  R.  SANTOS. 

Concluded  February  28,  1893;  proclaimed  November  7,  1894. 

28  Stats,   at  Large,  1205. 


APPENDIX    II.  649 

EGYPT. 

1884. 
COMMERCIAL  AGREEMENT. 

Concluded  November  16,  1884;  ratification  advised  by  the  Senate 
March  18,  1885;  ratified  by  the  President  May  7,  1885;  pro- 
claimed May  7,  1885.  (Treaties  and  Conventions,  1889,  p. 

272.) 

U.  S.  Treaties  1904,  p.  251;  24  Stats,  at  Large,  1004. 


ETHIOPIA. 

1903. 
TREATY  TO  REGULATE  COMMERCIAL  RELATIONS. 

Signed  December  27,  1903;  ratification  advised  by  the  Senate 
March  12,  1904;  ratified  by  the  President  March  17,  1904: 
proclaimed  September  30,  1904. 

IT.  S.  Treaties  1904,  p.  956;  33  Stats,  at  Large,  2254. 

ARTICLES. 

I.  Freedom  to  travel  and  transact  IV.  Use    of    means    of    transporta- 

business.  tion. 

II.  Security   of   persons    and    prop-  V.  Representatives       of       govern- 

erty.  ments. 

III.  Customs    duties,    imposts,    juris-  VI.  Duration. 

diction.  VII.  Ratification. 


650 


APPENDIX    II. 


FRANCE. 

1778. 
TREATY  OF  AMITY  AND  COMMERCE.1 

Concluded  at  Pans  February  6,  1778;  ratified  by  Congress  May  4, 
1778.     (Treaties  and  Conventions,  1889,  p.  296.) 

U.   S.    Treaties    1904,   p.    255;    8    Stats,    at   Large,    12. 

This  treaty,  abrogated  by  the  act  of  Congress  July  7,  1798,  con- 
sisted of  thirty-one  articles,  and  in  many  important  respects  formed 
the  basis  of  subsequent  treaties  of  commerce. 

1778. 
TREATY  OF  ALLIANCE. 

Concluded  at  Paris  February  6,  1778;  ratified  by  Congress  May  4, 
1778.     (Treaties  and  Conventions,  1889,  p.  307.) 

U.  S.  Treaties  1904,  p.  255;  8  Stats,  at  Large,  6. 

This  treaty,  consisting  of  twelve  articles,  provided  for  an  alliance 
to  carry  on  the  war  with  Great  Britain,  for  the  sovereignty  of  the 
lands  to  be  acquired  as  the  result  of  the  war,  and  the  guaranty  of 


1  See  Foster  v.  Neilson,  2  Pet.  253, 
7  L.  ed.  415;  Soulard  v.  United 
States,  4  Pet.  511,  7  L.  ed.  938;  De- 
lasus  v.  United  States,  9  Pet.  117, 
9  L.  ed.  71;  New  Orleans  v.  De 
Armas,  9  Pet.  224,  9  L.  ed.  109; 
Smith  v.  United  States,  10  Pet.  326, 
9  L.  ed.  442;  New  Orleans  v.  United 
States,  10  Pet.  662,  9  L.  ed.  573; 
Strother  v.  Lucas,  12  Pet.  410,  9  L. 
ed.  1137;'  Garcia  v.  Lee,  12  Pet. 
511,  9  L.  ed.  1176;  Keene  v.  Whit- 
aker,  14  Pet.  170,  10  L.  ed.  404; 
Chouteau  v.  Eckhart,  2  How.  344, 
11  L.  ed.  293;  Pollard  v.  Hagan, 
3  How.  212,  11  L.  ed.  565;  McDon- 
ogh  v.  Millaudon,  3  How.  693,  11 
L.  ed.  787;  United  States  v.  King, 
3  How.  773,  11  L.  ed.  824;  United 
States  v.  Eeynes,  9  How.  127,  13  L. 


ed.  74;  Davis  v.  Police  Jury  of  Con- 
cordia,  9  How.  280,  13  L.  ed.  138; 
United  States  v.  D'Auterive,  10 
How.  609,  13  L.  ed.  560;  United 
States  v.  Philadelphia  and  New  Or- 
leans, 11  How.  609,  13  L.  ed.  834; 
United  States  v.  Turner,  11  How. 
663,  13  L.  ed.  857;  United  States 
v.  Lynde's  Heirs,  11  Wall.  632,  20 
L.  ed.  230;  Slidell  v.  Grandjean,  111 
U.  S.  412,  4  Sup.  Ct.  Eep.  475,  28  L. 
ed.  321;  Bryan  v.  Kennett,  113 
U.  S.  179,  5  Sup.  Ct.  Eep.  407,  28 
L.  ed.  908;  Josephs  v.  United  States, 
1  Ct.  of  Cl.  197,  2  Ct.  of  Cl.  586; 
Gray  v.  United  States,  21  Ct.  of  Cl. 
340;  "The  Ship  Tom,"  29  Ct.  of 
Cl.  68;  Iowa  v.  Eood,  187  U.  S.  87, 
23  Sup.  Ct.  Eep.  49,  47  L.  ed.  86. 


APPENDIX    II.  651 

the  French  possessions  in  America  and  the  dominions  of  the  United 
States. 

An  additional  article  was  agreed  to  at  the  same  time  reserving  to 
the  King  of  Spain  the  right  to  participate  in  the  two  treaties.  This 
additional  article  was  also  ratified  by  Congress  May  4,  1778. 

By  an  act  of  Congress  approved  July  7,  1798,  the  treaties  with 
France  then  in  force  were  abrogated. 


1782. 

CONTRACT  FOR  THE  REPAYMENT  OF  LOANS  MADE  BY  THE  KING  OF 

FRANCE. 

Concluded  July  16,  1782;  ratified  by  Congress  January  22,  1783, 
(Treaties  and  Conventions,  1889,  p.  310.) 

U.  S.  Treaties  1904,  p.  255;  8  Stats,  at  Large,  614. 

Under  this  contract  the  United  States  pledged  itself  to  pay  in 
twelve  equal  annual  installments  of  1,500,000  livres  each  the  amount 
of  the  indebtedness  to  the  King  of  France,  which  was  18,000,000 
livres.  It  was  also  agreed  to  pay  the  loan  obtained  from  Holland 
of  10,000,000  livres  in  ten  annual  payments. 


1783. 

CONTRACT  FOR  A  NEW  LOAN  AND  THE  REPAYMENT  OF  THE  OLD  LOANS 
MADE  BY  THE  KING  OF  FRANCE. 

Concluded  February  25, 1783;  ratified  by  Congress  October  31, 1783 
(Treaties  and  Conventions,  1889,  p.  314.) 

U.  S.  Treaties  1904,  p.  256;  17  Stats,  at  Large,  797. 

By  this  agreement  6,000,000  livres  were  to  be  loaned  the  United 
States  from  the  royal  treasury  in  the  course  of  the  year,  and  to  be 
repaid  in  six  annual  installments  beginning  in  1797.  It  was  also 
agreed  that  the  payments  under  the  contract  of  1782  should  com- 
mence in  1787. 


652  APPENDIX    II. 

1788. 
CONSULAR  CONVENTION. 

Concluded  November  14,  1788;  ratification  advised  by  the  Senate 
July  29,  1789;  ratified  by  the  President  September  9,  1789; 
ratifications  exchanged  January  6,  1790  (dated  January  1, 
1790).  (Treaties  and  Conventions,  1889,  p.  316.) 

IT.  S.  Treaties  1904,  p.  256;  8  Stats,  at  Large,  106. 

This  convention  of  sixteen  articles  was  abrogated  by  the  act  of 
July  7,  1798. 

1800. 

TREATY  OF  PEACE,  COMMERCE,  AND  NAVIGATION. 

Concluded  September  30,  1800;  ratification  advised  by  the  Senate 
with  amendments  February  3,  1801;  ratified  by  the  President 
February  18,  1801;  ratified  by  the  first  consul  of  France  on 
condition  of  acceptance  of  amendments  proposed  by  him  July 
31,  1801;  ratifications  exchanged  July  31,  1801;  proclaimed 
December  21,  1801.  (Treaties  and  Conventions,  1889,  p.  322.) 

U.  S.  Treaties  1904,  p.  256;  8  Stats,  at  Large,  178. 

This  treaty  consisted  of  twenty-seven  articles  and  expired  by 
its  own  limitations  July  31,  1809. 

See  United  States  v.  The  Peggy,  of  Cl.  340;   Cushing  v.  United  States, 

1  Cranch,  103,  2  L.  ed.  49;    Cherac  22   Ct.   of  Cl.   1;    Hooper  v.  United 

v.    Cherac,   2   Wheat.   259,   4   L.    ed.  States,    22    Ct.    of    Cl.    408;    "The 

234;    De  Geofroy  v.  Biggs,  133  U.  S.  Schooner  Jane,"  23  Ct.  of  Cl.  226; 

258,  10  Sup.  Ct.  Eep.  295,  33  L.  ed.  "The  Ship  Tom,"  29  Ct.  of  Cl.  68. 
642;    Gray  v.  United  States,  21  Ct. 

1803. 

TREATY  FOR  THE  CESSION  OF  LOUISIANA. 

Concluded  April  30,  1803  ;  ratification  advised  by  the  Senate  Octo- 
ber 20,  1803;  ratified  by  the  President  October  21,  1803;  rati- 
fications exchanged  October  21,  1803 ;  proclaimed  October  21, 
1803.  (Treaties  and  Conventions,  1889,  p.  331.) 

U.  S.  Treaties  1904,  p.  257;  8  Stats,  at  Large,  200. 
(This  treaty,  although  executed,  is  mentioned  on  account  of  its 
historical  value  in  defining  the  extent  pf  the  cession.) 


APPENDIX   It 


653 


AETICLES. 
I.  Cession  of  the  colony  of  Louisi-       VII.  Privileges      to      French        and 


ana. 

II.  Extent  of  cession. 
III.  Citizenship   to   inhabitants. 

IV.  Transfer  of  territory. 

V.  Assumption  of  possession. 
VI.  Treaties  with  Indians. 

See  Foster  v.  Neilson,  2  Pet.  253, 
7  L.  ed.  415;  Soulard  v.  United 
States,  4  Pet.  511,  7  L.  ed.  938; 
Smith  v.  United  States,  10  Pet.  326, 
9  L.  ed.  442;  New  Orleans  v.  United 
States,  10  Pet.  662,  9  L.  ed.  573; 
Strother  v.  Lucas,  12  Pet.  410,  9  L. 
ed.  1137;  Garcia  v.  Leo,  12  Pet. 
511,  9  L.  ed.  1176;  Keene  v.  Whit- 
aker,  14  Pet.  470,  10  L.  ed.  404; 
Chouteau  v.  Eckhart,  2  How.  344, 
11  L.  ed.  293;  Pollard  v.  Hagan,  3 
How.  212,  11  L.  ed.  565;  McDonogh 
v.  Millaudon,  3  How.  693,  11  L.  ed. 
787;  United  States  v.  King,  3  How. 
773,  11  L.  ed.  824;  United  States 
v.  Eeynes,  9  How.  127,  13  L.  ed. 
74;  Davis  v.  Police  Jury  of  Con- 
cordia,  9  How.  280,  13  L.  ed.  138; 


Spanish  ships. 

VIII.  Most  favored  nation  clause. 
XI.  Approval     of     other     conven- 
tions. 
X.  Eatification. 


United  States  v.  D'Auterive,  10 
How.  609,  13  L.  ed.  560;  United 
States  v.  Philadelphia  and  New  Or- 
leans, 11  How.  609,  13  L.  ed.  834; 
United  States  v.  Turner,  11  How. 
663,  13  L.  ed.  857;  United  States  v. 
Lynde's  Heirs,  11  Wall.  632,  20  L. 
ed.  230;  Slidell  v.  Granjean,  111 
U.  S.  412,  4  Sup.  Ct.  Eep.  475, 
28  L.  ed.  321;  Bryan  v.  Ken- 
nett,  113  U.  S.  179,  5  Sup.  Ct.  Eep. 
407,  28  L.  ed.  .908;  Josephs  v. 
United  States,  1  Ct.  of  Cl.  197,  2 
Ct.  of  Cl.  586;  Gray  v.  United 
States,  21  Ct.  of  Cl.  340;  "The 
Ship  Tom,"  29  Ct.  of  Cl.  68;  Iowa 
v.  Eood,  187  U.  S.  87,  23  Sup.  Ct. 
Eep.  49,  47  L.  ed.  86. 


1803. 

CONVENTION  FOB  THE  PAYMENT  OF  THE  PURCHASE  OF  LOUISIANA. 

Concluded  April  30,  1803 ;  ratification  advised  ~b'y  the  Senate  Octo- 
ber 20,  1803;  ratified  ~by  the  President  October  21,  1803;  ratifi- 
cations exchanged  October  21,  1803;  proclaimed  October  21, 
1803.  (Treaties  and  Conventions,  1889,  p.  334.) 

U.  S.  Treaties  1904,  p.  262;  8  Stats,  at  Large,  206. 

Under  this  convention  a  stock  amounting  to  $11,250,000  was 
created  to  be  paid,  with  six  per  cent  interest,  in  annual  payments 
of  not  less  than  $3,000,000,  the  first  payment  to  commence  after 
fifteen  years  from  the  exchange  of  ratifications.  (See  U.  S.  Stats., 
Vol.  2,  p.  245.) 


654  APPENDIX   II. 

1803. 
CLAIMS  CONVENTION. 

Concluded  April  30,  1803;  ratification  advised  by  the  Senate  Octo- 
ber 20,  1803;  ratified  by  the  President  October  21,  1803;  ratifi- 
cations exchanged  October  21,  1803 ;  proclaimed  October  21, 
1803.  (Treaties  and  Conventions,  1889,  p.  335.) 

U.  S.  Treaties  1904,  p.  262;  8  Stats,  at  Large,  208. 

The  convention  provided  for  the  payment  of  claims  of  United 
States  citizens  against  France,  not  to  exceed  60,000,000  francs. 
The  commission  organized  under  the  convention  held  its  first  meet- 
ing July  5,  1803,  and  adjourned  December  1,  1804. 

1822. 
CONVENTION  OF  NAVIGATION  AND  COMMERCE. 

Concluded  June  24,  1822;  ratification  advised  by  the  Senate  Janu- 
ary 31,  1823;  ratified  by  the  President  February  12,  1823; 
ratifications  exchanged  February  12,  1823;  proclaimed  Febru- 
ary 12,  1823.  (Treaties  and  Conventions,  1889,  p.  343.) 

U.  S.  Treaties  1904,  p.  263;    8  Stats,  at  Large,  278 

ARTICLES. 

I.  Extra    duties   by   American   ves-  VI.  Deserters  from  ships. 

sels.  VII.  Duration;    reduction  of  extra 

II.  Extra  duties  by  French  vessels.  duties. 

III.  Transit  and  re-exportation.  VIII.  Ratification. 

IV.  Ton  described.  Separate   articles.     Refund  of  extra 

V.  Shipping  charges.  duties. 

1831. 
CONVENTION  AS  TO  CLAIMS  AND  DUTIES  ON  WINES  AND  COTTON. 

Concluded  July  4,  1831;  ratification  advised  by  the  Senate  Janu- 
ary 27,  1832;  ratified  by  the  President  February  2,  1832;  rati- 
fications exchanged  February  2,  1832;  proclaimed  July  13, 
1832.  (Treaties  and  Conventions,  1889,  p.  345.) 

U.  S.  Treaties    1904,  p.  265;  8  Stats,  at  Large,  430. 


APPENDIX    II.  655 

By  this  convention  France  agreed  to  pay  to  the  United  States 
in  settlement  of  all  claims  of  United  States  citizens  25,000,000 
francs,  and  the  United  States  agreed  to  pay  in  settlement  of  claims 
of  the  French  Government  and  people  1,500,000  francs.  Other 
claims  not  included  in  the  provisions  of  the  treaty  were  to  be 
brought  before  the  appropriate  authorities  in  either  country. 

1843. 
EXTRADITION  CONVENTION. 

Concluded  November  9,  1843;  ratification  advised  by  the  Senate 
February  1,  1844;  ratified  by  the  President  February  2,  1844; 
ratifications  exchanged  April  12,  1844;  proclaimed  April  13, 
1844.  (Treaties  and  Conventions,  1899,  p.  348.) 

U.  S.  Treaties  1904,  p.  266;    8  Stats,  at  Large,  580. 

AKTICLES. 

I.  Delivery  of  accused.  IV.  Expenses. 

II.  Extraditable  crimes.  V.  Political  crimes,  etc. 

III.  Delivery.  VI.  Duration;    ratification. 

See  In  re  Metzger,  5  How.  176,  12  L.  ed.  104. 

1845. 
ADDITIONAL  ARTICLE  TO  EXTRADITION  CONVENTION. 

Concluded  February  24,  1845;  ratification  advised  by  the  Senate 
March  12,  1845;  ratified  by  the  President  May  5,  1845;  rati- 
fications exchanged  June  21,  1845;  proclaimed  July  24,  1845. 
(Treaties  and  Conventions,  1889,  p.  349.) 

U.  S.  Treaties  1904,  p.  267;  8  Stats,  at  Large,  617. 

1853. 
CONSULAR  CONVENTION. 

Concluded  February  23,  1853;  ratification  advised  by  the  Senate 
with  amendments  March  29,  1853 ;  ratified  by  the  President 
April  1,  1853;  ratifications  exchanged  August  11,  1853;  pro- 
claimed August  12,  1853.  (Treaties  and  Conventions,  1889, 
p.  350.) 

U.  S.  Treaties  1904,  p.  268;  10  Stats,  at  Large,  Treaties,  114. 


656  APPENDIX    II. 

ARTICLES. 

I.  Officers  recognized;   exequaturs.  VIII.  Settlement     of    shipping    dis- 

II.  Privileges  and  immunities.  putes. 

III.  Inviolability  of  consulates.  IX.  Deserters  from  ships. 

IV.  Complaints  to  authorities.  X.  Authority  as  to  shipping. 
V.  Agencies.  XI.  Shipwrecks. 

VI.  Notarial  authority.  XII.  Most  favored  nation  privileges. 

VII.  Property  rights.  XIII.  Duration;    ratification. 

See  Prevost  v.  Grenaux,  19  How.       295,  33  L.  ed.  642;   Bahuaud  v.  Bize, 
1,    15    L.    ed.    572;    De  Geofroy  v.       105  Fed.  487. 
Riggs,  133  U.  S.  258,  10  Sup.  Ct.  Eep. 


1858. 

ADDITIONAL  ARTICLE  TO  EXTRADITION  CONVENTION. 

Concluded  February  10,  1858;  ratification  advised  by  the  Senate, 
ivith  amendment,  June  15, 1858;  ratified  ~by  the  President  June 
28,  1858;  ratifications  exchanged  February  12,  1859;  pro- 
claimed February  14,  1859.  (Treaties  and  Conventions,  1889, 
p.  354.) 

U.  S.  Treaties  1904,  p.  273;   11  Stats,  at  Large,  741. 

It  is  agreed  between  the  High  Contracting  Parties  that  the  pro- 
visions of  the  treaties  for  the  mutual  extradition  of  criminals  be- 
tween the  United  States  of  America  and  France,  of  November  9th, 
1843,  and  February  24th,  1845,  and  now  in  force  between  the  two 
Governments,  shall  extend  not  only  to  persons  charged  with  the 
crimes  therein  mentioned,  but  also  to  persons  charged  with  the 
following  crimes,  whether  as  principals,  accessories  or  accomplices, 
namely,  forging  or  knowingly  passing  or  putting  in  circulation 
counterfeit  coin  or  bank  notes  or  other  paper  current  as  money, 
with  intent  to  defraud  any  person  or  persons — Embezzlement  by 
any  person  or  persons  hired  or  salaried  to  the  detriment  of  their 
Employers,  when  these  crimes  are  subject  to  infamous  punishment. 

In  witness  whereof  the  respective  Plenipotentiaries  have  signed 
the  present  article  in  triplicate,  and  have  affixed  thereto  the  seal 
of  their  arms. 

Done  at  Washington,  the  tenth  of  February,  1858. 

LEW  CASS.     [SEAL.] 
SARTIGES.     [SEAL.] 


APPENDIX    II.  657 

1869. 
TRADEMARK  CONVENTION. 

Concluded  April  16,  1869;  ratification  advised  by  the  Senate  April 
19,  1869 ;  ratified  by  the  President  April  30,  1869 ;  ratifications 
exchanged  July  3,  1869;  proclaimed  July  6,  1869.  (Treaties 
and  Conventions,  1889,  p.  355.) 

U.  S.  Treaties  1904,  p.  273;    16  Stats,  at  Large,   771. 

ARTICLES. 

I.  Protection  of  trademarks.  IU.  Duration. 

II.  Registration.  IV.  Ratification. 

See  Lacroix  v.  Sarrazin,  4  Woods,  Francaise"  v.  Schultz,  57  Fed.  37; 
174,  15  Fed.  489;  "La  Republique  In  re  Balensi,  120  Fed.  864. 

1880. 
CLAIMS  CONVENTION. 

Concluded  January  15,  1880;  ratification  advised  by  the  Senate 
March  29,  1880;  ratified  by  the  President  April  3,  '1880;  ratifi- 
cations exchanged  June  23,  1880;  proclaimed  June  25,  1880. 
(Treaties  and  Conventions,  1889,  p.  356.) 

U.  S.  Treaties  1904,  p.  275;  21  Stats,  at  Large,  673. 

By  this  convention  of  twelve  articles,  claims  of  United  States 
citizens  against  France  arising  out  of  the  French-Mexican  war  and 
the  war  with  Germany,  and  claims  of  French  citizens  against  the 
United  States  arising  out  of  the  civil  war,  were  referred  to  three 
commissioners.  The  commission  met  in  Washington,  November  5, 
1880,  and  adjourned  March  31,  1884.  Awards  against  the  United 
States  amounted  to  $625,566.35,  and  against  France  to  13,659 
francs,  14  centimes. 

See  Burthe  v.  Denis,  133  U.  S.  514,  10  Sup.  Ct.  Rep.  335,  33  L.  ed.  768. 
Treaties — 42 


658  APPENDIX   II. 

1882. 
CLAIMS  CONVENTION. 

Concluded  July  19,  1882;  ratification  advised  by  the  Senate  August 
8,  1882;  ratified  by  the  President  December  28,  1882;  ratifica- 
tions exchanged  December  29,  1882;  proclaimed  December  29, 
1882.  (Treaties  and  Conventions,  1889,  p.  360.) 

U.  S.  Treaties  1904,  p.  275 ;    22  Stats,  at  Large,  983. 
This  convention  extended  the  term  of  the  claims  commission  un- 
der the  convention  of  1880  until  July  1,  1883. 

1883. 
CLAIMS  CONVENTION. 

Concluded  February  8,  1883;  ratification  advised  by  the  Senate 
with  an  amendment  February  21,  1883;  ratified  by  the  Presi- 
dent April  3, 1883;  ratifications  exchanged  June  25,  1883;  pro- 
claimed June  25,  1883.  (Treaties  and  Conventions,  1889,  p. 
361.) 

U.  S.  Treaties  1904,  p.  275;  23  Stats,  at  Large,  728. 

The  term  of  the  claims  commission  under  the  convention  of  1880 
was  further  extended  by  this  convention  to  April  1,  1884. 

1898. 
EECIPROCAL   COMMERCIAL  AGREEMENT. 

Concluded  May  28,  1898;  proclaimed  May  30,  1898;  in  effect  June 

1,  1898. 
TJ.  S.  Treaties  1904,  p.  276;  30  Stats,  at  Large,  1774. 

AETICLES. 

I.  Concessions  by  France.  III.  Effect;    duration. 

II.  Concessions  by  United  States. 

1902. 

AMENDATORY  RECIPROCAL  COMMERCIAL  AGREEMENT  WITH  FRANCI 

Concluded  August  20, 1902;  proclaimed  August  22,  1902. 

U.   S.   Treaties   1904,  p.   278. 

AETICLES. 
I.  Algeria;   Porto  Eico.  II.  Effect;    duration. 


APPENDIX    II.  659 


RELATIONS  IN  TUNIS. 

Signed  March  15,  1904;  ratification  advised  by  the  Senate  March 
24,  1904;  ratified  by  the  President  May  6,  1904;  ratifications 
exchanged  May  7,  190 4;  proclaimed  May  9,  1904. 

U.  S.  Treaties  1904,  p.  949. 

AKTICLES. 

I.  Renunciation  of  treaties  with  Tu-       IT.  Ratification, 
nis,  etc. 


GERMAN  EMPIRE. 

The  formation  of  the  German  Empire  in  1871  by  the  consolida- 
tion of  the  North  German  Union,  etc.,  has  in  some  instances  abro- 
gated the  treaties  entered  into  with  the  independent  German  gov- 
ernments now  embraced  in  the  Empire,  but  reference  is  here  given 
to  all  the  separate  governments  with  which  treaties  have  been  con- 
cluded. 

See  Baden,  Bavaria,  Bremen,  Brunswick  and  Liineberg,  Han- 
over, Hanseatic  Republics,  Hesse,  Mecklenburg-Schwerin,  Mecklen- 
burg-Strelitz,  Nassau,  North  German  Union,  Oldenburg,  Prussia, 
Saxony,  Schaumburg-Lippe,  Wiirttemberg. 

1871. 
CONSULAR  CONVENTION. 

Concluded  December  11,  1871;  ratification  advised  by  the  Senate 
January  18,  1872;  ratified  by  the  President  January  26,  1872; 
ratifications  exchanged  April  29,  1872;  proclaimed  June  1, 
1872.  (Treaties  and  Conventions,  1889,  p.  363.) 

U.  S.  Treaties  1904,  p.  279;    17  Stats,  at  Large,  921. 


660  APPENDIX   II. 


AETICLES. 

I.  Consular  offices.  XII.  Authority  over  ships. 

II.  Exequaturs.  XIII.  Disputes  between  officers  and 

III.  Privileges  and  immunities.  crews  of  ships. 

IV.  Arms  and  flags.  XIV.  Deserters  from  ships. 

V.  Inviolability  of  consulates.  XV.  Damages  to  vessels  at  sea. 

VT.  Temporary  vacancies.  XVI.  Shipwrecks. 

VII.  Consular  agencies.  XVII.  Trademark  protection. 

VIII.  Communications  with  authori-  XVIII.  Duration;    ratification. 

ties.  Protocol.       As     to     meaning      of 

IX.  Notarial  authority.  ' 'property,"  and  "deceased 

X.  Property  of  decedents.  citizens." 
XI.  Effects  of  deceased  sailors  and 
passengers. 

See    The   Burchard,   42   Fed.    608;  Eichter   v.   Eeynolds,   59   Fed.   577,   8 
C.  C.  A.  220. 


1892. 

COPYRIGHT  AGREEMENT. 

Signed  January  15,  1892;  proclaimed  April  15,  1892. 
27  Stats,  at  Large,  1021. 

AETICLES.  , 

I.  American  citizens  to  have  copy-       H.  German    subjects  to  have    copy- 
right in  German  Empire.  right  in  the  United  States. 

III.  Duration. 

1900. 

RECIPROCAL  COMMERCIAL  ARRANGEMENT  WITH  GERMANY. 
Concluded  July  10,  1900;  proclaimed  July  13,  1900. 

U.  S.  Treaties  1904,  p.  285;    31  Stats,  at  Large,  1935.     The  proclamation  of 
the    President   is    found   in    31    Stats,    at   Large,    1978. 

AETICLES. 

I.  Concessions  by  United  States.  in.  Effect;    duration. 

H.  Concessions  by  Germany. 


APPENDIX   II.  661 


GBEAT  BRITAIN. 
(UNITED  KINGDOM  OF  GREAT  BRITAIN  AND  IRELAND.) 

The  treaties  leading  to  the  establishment  of  peace  between  the 
United  States  and  Great  Britain,  which  formed  such  an  important 
factor  in  settling  the  territory  and  establishing  the  Government  of 
the  United  States,  are  referred  to,  in  the  treaty  volumes  although 
many  of  the  articles  have  been  abrogated  subsequent  wars  or  modi- 
fied by  later  conventions. 

1782. 
PROVISIONAL,  TREATY  OF  PEACE. 

Concluded  at  Paris,  November  30,  1782;  proclamation  ordered  ~by 
Congress  April  11,  1783.  (Treaties  and  Conventions,  1889,  p. 
370.) 

U.  8.  Treaties  1904,  p.  287;  8  Stats,  at  Large,  54. 

AETICLES. 

I.  Independence  acknowledged.  VII.  Withdrawal  of  British  armies. 

II.  Boundaries.  VIII.  Navigation  of  the  Mississippi 

III.  Fishery  rights.  Eiver. 

IV.  Eecovery  of  debts.  IX.  Restoration  of  territory. 

V.  Restitution  of  estates.  Separate  article.    Boundary  of  West 

VI.  Confiscations    and    prosecutions  Florida, 
to  cease. 


1783. 
ARMISTICE  DECLARING  A  CESSATION  OF  HOSTILITIES. 

Concluded  January  20,  1783. 
U.  S.  Treaties  1904,  p.  291;  8  Stats,  at  Large,  58. 


662 


APPENDIX   II. 


1783. 
DEFINITIVE  TREATY  OF  PEACE.1 

Concluded  at  Paris  September  3,  1783;  ratified  by  Congress  Janu- 
ary 14,  1784;  proclaimed  January  14,  1784.  (Treaties  and 
Conventions,  1889,  p.  375.) 

U.  S.  Treaties  1904,  p.  292;  8  Stats,  at  Large,  80. 


AKTICLES. 


I.  Independence    acknowledged. 
II.  Boundaries. 
III.  Fishery  rights. 
IV.  Recovery  of  debts. 

V.  Restitution  of  estates. 
VI.  Confiscations    and    prosecutions 
to  cease. 

1  Republica  v.  Gordon,  1  Dall.  233, 
1  L.  ed.  115;  Georgia  v.  Brails- 
ford,  3  Dall.  1,  1  L.  ed.  483;  Ware 
T.  Hylton,  3  Dall.  199,  1  L.  ed. 
568;  Hunter  v.  Fairfax,  3  Dall.  305, 
1  L.  ed.  613;  Hopkirk  v.  Bell,  3 
Cranch,  454,  2  L.  ed.  497,  4  Cranch, 
164,  2  L.  ed.  583;  M'llvaine  v. 
Coxe's  Lessee,  4  Cranch,  209,  2  L. 
ed.  598;  Higginson  v.  Mein,  4 
Cranch,  415,  2  L.  ed.  664;  Owings 
v.  Norwood's  Lessee,  5  Cranch,  344, 

3  L.  ed.  120;    Smith  v.  Maryland,  6 
Cranch,  286,  3  L.  ed.  225;   Fairfax  v. 
Hunter,  7  Cranch,  603,  3  L.  ed.  453; 
Martin  v.  Hunter's  Lessee,  1  Wheat. 
304,  4  L.  ed.  97;    Orr    v.  Hodgson, 

4  Wheat.  453,  4  L.  ed.  613;    Blight's 
Lessee  v.   Rochester,  7  Wheat.   535, 


VII.  Withdrawal  of  British  armies. 
VIII.  Navigation  of  the  Mississippi 

River. 

IX.  Restoration  of  territory. 
X.  Ratification. 


5  L.  ed.  516;  Society  for  Propaga- 
tion of  the  Gospel  v.  New  Haven, 
8  Wheat.  464,  5  L.  ed.  662;  Harcourt 
v.  Gaillard,  12  Wheat.  523,  6  L.  ed. 
716;  Shanks  v.  Dupont,  3  Pet.  242, 
7  L.  ed.  666;  Carver  v.  Jackson,  4 
Pet.  1,  7  L.  ed.  761;  United  States 
v.  Repentigny,  5  Wall.  211,  18  L. 
ed.  627;  Hylton 's  Lessee  v.  Brown, 
1  Wash.  C.  C.  298,  343,  Fed.  Cas.  No. 
6981;  Gordon's  Lessee  v.'  Kerr,  1 
Wash.  C.  C.  322,  Fed.  Cas.  No.  5611; 
Fisher  v.  Harnden,  1  Paine  C.  C. 
55,  Fed.  Cas.  No.  4819;  Jones  v. 
Walker,  2  Paine  C.  C.  688,  Fed.  Cas. 
No.  7507;  Dunlop  v.  Alexander,  1 
Cranch  C.  C.  498,  3  Fed.  Cas.  No. 
4166. 


APPENDIX   II.  663 

1794. 

TREATY  OF  AMITY,  COMMERCE  AND  NAVIGATION.1 
(JAY  TREATY.) 

Concluded  November  19,  1794;  ratification  advised  by  the  Senate 
with  amendment  June  24, 1795  ;  ratified  by  the  President;  rati- 
fication exchanged  October  28,  1795;  proclaimed  February  29, 
1796.  (Treaties  and  Conventions,  1889,  p.  379.) 

U.  S.  Treaties  1904,  p.  297;  8  Stats,  at  Large,  116. 

This  treaty  consisted  of  twenty-eight  articles  and  an  additional 
article  relating  to  the  West  Indian  trade.  Articles  XI  to  XXVII 
expired  by  their  own  limitation  October  28,  1807,  and  the  entire 
treaty  terminated  by  the  war  declared  June  18,  1812.  The  commis- 
sion under  Article  V  made  a  declaration,  October  25,  1798,  as  to  the 
true  St.  Croix  River  named  in  the  treaty.  The  commission  under 
Article  VI,  to  consider  claims  arising  from  obstructions  of  judicial 
remedies,  met  at  Philadelphia  May  29,  1797,  and  their  meetings 
finally  suspended  July  31,  1799,  owing  to  disagreements.  By  the 
treaty  of  1802,  $2,664,000  was  provided  to  be  paid  to  Great  Britain 
in  settlement  of  these  claims.  The  commission  under  Article  VII, 
to  consider  claims  arising  from  illegal  captures,  met  at  London  Au- 
gust 16,  1796,  and  suspended  its  sessions  July  20,  1799.  The  meet- 
ings were  resumed  under  the  treaty  of  1802,  and  the  final  meeting- 
was  held  February  4,  1804.  The  awards  against  the  United  States 
amounted  to  $143,428.14,  and  against  Great  Britain  to  $11,656,000. 

1  See  Fitzsiinmons  v.  Newport  Ins.  wards,  9  Wheat.  489,  6  L.  ed.  142; 

Co.,  4  Cranch,   185,    2    L.    ed.    591;  Shanks  v.  Dupont,  3  Pet.  242,  7  L. 

Fairfax   v.    Hunter,    7    Cranch,    603,  ed.    666;     Forsyth    v.    Eeynolds,    15 

3   L.   ed.  453;    Harden  v.  Fisher,   1  How.   358,   14   L.   ed.    729;      United 

Wheat.   300,   4   L.    ed.    96;     Jackson  States    v.    Wash,    Bee's    Adm.    Kep. 

v.  Clarke,  3  Wheat.  1,  4  L.  ed.  319;  267;    Fisher  v.  Harnden,  1  Paine  C. 

Craig  v.   Eadford,  3   Wheat.   594,   4  C.  55,  Fed.  Gas.  No.  4819;    Jackson 

L.  ed.  467;   Orr  v.  Hodgson,  4  Wheat.  v.   Porter,   1   Paine  C.   C.  457,  Fed. 

453,  4  L.   ed.   613;    Blight's  Lessee  Cas.  No.  7143;    Society  for  the  Prop- 

v.  Eochester,  7  Wheat.  535,  5  L.  ed.  agation  of  the  Gospel  v.  Wheeler,  2 

516;    Society  for  the  Propagation  of  Gallison,  105,  Fed.  Cas.  No.  13,156; 

the  Gospel  v.  New  Haven,  8  Wheat.  Gray  v.  United  States,  21  Ct.  of  Cl. 

464,   5   L.    ed.   662;    Hughes   v.   Ed-  340. 


664  APPENDIX    II. 

1796. 
ARTICLE  EXPLANATORY  TO  ARTICLE  III,  TREATY  OF  1794. 

Concluded  May  4,  1796 ;  ratification  advised  by  the  Senate  May  9, 
1796.     (Treaties  and  Conventions,  1889,  p.  395.) 

U.  S.  Treaties  1904,  p.  297;  8  Stats,  at  Large,  130. 

This  article  related  to  the  passage  of  Indians  into  the  territories 
of  both  nations.  The  treaty  of  1794  terminated  by  the  declaration 
of  the  war  of  1812. 

1798. 
ARTICLE  EXPLANATORY  TO  ARTICLE  V,  TREATY  OP  1794. 

Concluded  March  15,  1798;  ratification  advised  by  the  Senate  June 
5,  1798.     (Treaties  and  Conventions,  1889,  p.  396.) 

U.  S.  Treaties  1904,  p.  297;  8  Stats,  at  Large,  131. 

This  article  authorized  the  commission  under  Article  V  of  the 
treaty  of  1794  to  designate  the  source  of  the  St.  Croix  River.  The 
declaration  was  made  October  25,  1798. 


1802. 

CONVENTION  FOR  PAYMENT  OF  INDEMNITIES  AND  SETTLEMENT  OF 

DEBTS. 

Concluded  January  8, 1802;  ratification  advised  by  the  Senate  April 
26,  1802;  ratified  by  the  President  April  27,  1802;  ratifications 
exchanged  July  15,  1802;  proclaimed  April  27,  1802.  (Treat- 
ies and  Conventions,  1889,  p.  398.) 

U.  S.  Treaties  1904,  p.  298;  8  Stats,  at  Large,  190. 

This  convention  of  five  articles  provides  for  the  payment  to  Great 
Britain  of  £600,000  in  full  for  the  claims  submitted  under  Article 
VI  of  the  treaty  of  1794,  and  for  the  continuation  of  the  commis- 
sion under  Article  VII,  and  it  was  agreed  that  the  awards  should 
be  paid  in  three  annual  installments.  It  was  also  agreed  that  cred- 
itors of  either  country  should  meet  with  no  impediment  in  the  col- 
lection of  their  debts. 


APPENDIX   II.  665 

1814. 

TREATY  OF  PEACE  AND  AMITY. 
(TREATY  OF  GHENT.) 

Concluded  at  Ghent  December  24,  1814;  ratification  advised  by  the 
Senate  February  16,  1815;  ratified  by  the  President  February 
17,  1815 ;  ratifications  exchanged  February  17,  1815 ;  pro- 
claimed February  18,  1815.  (Treaties  and  Conventions,  1889, 
p.  399.) 

U.  S.  Treaties  1904,  p.  298;  8  Stats,  at  Large,  218. 

AETICLES. 

I.  Peace  declared;    restoration   of  VII.  Boundaries;    determination  of 

territory,  archives,  etc.  northern,  from  Lake  Huron 

II.  Cessation  of  hostilities.  to  Lake  of  the  Woods. 

III.  Eelease  of  prisoners.  vm    Powers    of    boundary  commis- 

IV.  Boundaries;      determination    of  sions  etc 

northeastern. 

V.  Boundaries;     determination     of  IX"  Cessation    of    hostilities    with 

northern,  from  St.  Croix  Eiver 

to  St.  Lawrence  Eiver.  X.  Abolition  of  slave  trade. 

VI.  Boundaries;      determination    of  xi.  Eatification. 

northern,  from    St.   Lawrence 

Eiver  to  Lake  Superior. 


1815. 
CONVENTION  OF  COMMERCE  AND  NAVIGATION. 

Concluded  July  3,  1815;  ratification  advised  by  the  Senate,  subject 
to  exception  as  to  the  island  of  St.  Helena,  December  19,  1815 ; 
ratified  by  the  President  December  22,  1815;  ratifications  ex- 
changed December  22,  1815 ;  proclaimed  December  22,  1815. 
(Treaties  and  Conventions,  1889,  p.  410.) 

U.  S.  Treaties  1904,  p.  308;  8  Stats,  at  Large,  228. 

This  convention  was  continued  in  force  for  ten  years  by  Article 
IV,  treaty  of  1818,  p.  312,  and  indefinitely  extended  by  convention 
of  August  6,  1827. 


666  APPENDIX   II. 


AETICLES. 

I.  Freedom  of  commerce  and  navi-  III.  Trade  with  British  East  Indies, 

gation.  etc. 

II.  Import  and  export  duties;    ship-  IV.  Consuls. 

ping;    trade  with  British  pos-  V.  Duration;    ratification, 

sessions    in    West    Indies    and  Declaration.     Vessels  excluded  from 

North  America.  island  of  St.  Helena. 


1817. 

ARRANGEMENT  BETWEEN  THE  UNITED  STATES  AND  GREAT  BRITAIN, 
BETWEEN  RICHARD  RUSH,  ACTING  AS  SECRETARY  OF  THE  DE- 
PARTMENT OF  STATE,  AND  CHARLES  BAGOT,  His  BRITANNIC 
MAJESTY 's  ENVOY  EXTRAORDINARY,  ETC. 

Concluded  in  April,  1817 ;  advised  and  consented  to  by  the  Senate 
April  16,  1818;  proclaimed  April  28,  1818. 

U.  S.  Treaties  1904,  p.  312;    8  Stats,  at  Large,  231. 

The  naval  force  to  be  maintained  upon  the  American  lakes,  by 
His  Majesty  and  the  Government  of  the  United  States,  shall  hence- 
forth be  confined  to  the  following  vessels  on  each  side ;  that  is — 

On  Lake  Ontario,  to  one  vessel  not  exceeding  one  hundred  tons 
burden,  and  armed  with  one  eighteen-pound  cannon. 

On  the  upper  lakes,  to  two  vessels,  not  exceeding  like  burden  each, 
and  armed  with  like  force. 

On  the  waters  of  Lake  Champlain,  to  one  vessel  not  exceeding  like 
burden,  and  armed  with  like  force. 

All  other  armed  vessels  on  these  lakes  shall  be  forthwith  dis- 
mantled, and  no  other  vessels  of  war  shall  be  there  built  or  armed. 

If  either  party  should  hereafter  be  desirous  of  annulling  this  stip- 
ulation, and  should  give  notice  to  that  effect  to  the  other  party,  it 
shall  cease  to  be  binding  after  the  expiration  of  six  months  from  the 
date  of  such  notice. 

The  naval  force  so  to  be  limited  shall  be  restricted  to  such  ser- 
vices as  will,  in  no  respect,  interfere  with  the  proper  duties  of  the 
armed  vessels  of  the  other  party. 


APPENDIX   II.  667 


1818. 

CONVENTION  RESPECTING  FISHERIES,  BOUNDARY  AND  THE  RESTORA- 
TION OF   SLAVES.1 

Concluded  October  20, 1818;  ratification  advised  ~by  the  Senate  Jan- 
uary 25, 1819;  ratified  by  the  President  January  28,  18.19;  rati- 
fications exchanged  January  30,  1819;  proclaimed  January  30, 
1819.  (Treaties  and  Conventions,  1889,  p.  415.) 

U.  S.  Treaties  1904,  p.  312;  8  Stats,  at  Large,  248. 

AETICLES. 

I.  Fisheries.  IV.  Commercial    convention    extend- 

II.  Boundary  from  the  Lake  of  the  ed. 

Woods    to    the    Stony    Moun-  V.  Claims  for  restitution  of  slaves, 

tains.  VI.  Ratification. 
III.  Country     west     of     the     Stony 
Mountains. 

1822. 
CLAIMS  CONVENTION. 

Concluded  July  12,  1822;  ratification  advised  by  the  Senate  Janu- 
ary 3,  1823;  ratified  by  the  President,  January,  1823;  ratifica- 
tions exchanged  January  10,  1823 ;  proclaimed  January  11, 
1823.  (Treaties  and  Conventions,  1889,  p.  418.) 

U.  S.  Treaties  1904,  p.  315;  8  Stats,  at  Large,  282. 

The  Emperor  of  Russia  having  decided  the  United  States  to  be 
entitled,  under  Article  I  of  the  Treaty  of  Ghent,  to  the  restitution 
of  slaves  carried  away  by  the  British  forces,  this  convention  pro- 
vided for  a  commission  to  ascertain  the  average  value  of  the  slaves 
and  to  decide  upon  the  claims  for  indemnity.  The  commission  met 
in  "Washington  August  25,  1823,  and  having  fixed  the  average  value 
of  the  slaves,  on  September  13,  1824,  met  to  consider  the  claims. 
Being  unable  to  agree,  a  new  convention  was  negotiated  November 
13,  1826,  and  the  commission  was  dissolved  March  26,  1827. 

1  See  McKay  v.  Campbell,  2  Saw.   118,  Fed.  Cas.  No.  8840. 


668  APPENDIX    II. 

1826. 
CONVENTION  RELATIVE  TO  INDEMNITY  FOB  SLAVES. 

Concluded  November  13,  1826 ;  ratification  advised  by  the  Senate 
December  26,  1826 ;  ratified  by  the  President  December  27, 
1826;  ratifications  exchanged  February  6,  1827 ;  proclaimed 
March  19,  1827.  (Treaties  and  Conventions,  1889,  p.  424.) 

IT.  S.  Treaties  1904,  p.  316;  8  Stats,  at  Large,  344, 

By  this  convention  Great  Britain  agreed  to  pay  $1,204,960  as  in- 
demnity for  slaves  carried  away.  By  act  of  March  2,  1827  (U.  S. 
Stats.,  Vol.  4,  p.  219),  a  commission  was  authorized  to  settle  the 
claims.  The  first  meeting  of  the  commission  was  held  July  10, 
1827,  and  the  last  August  31,  1828. 

1827. 
CONVENTION  CONTINUING  IN  FORCE  ARTICLE  III,  TREATY  OF  1818. 

Concluded  August  6,  1827 ;  ratification  advised  by  the  Senate  Feb- 
ruary 5,  1828;  ratified  by  the  President  February  21,  1828; 
ratifications  exchanged  April  2,  1828;  proclaimed  May  15, 
1828.  (Treaties  and  Conventions,  1889,  p.  426.) 

U.  S.  Treaties  1904,  p.  316;  8  Stats,  at  Large,  360. 

This  convention  provided  for  the  joint  temporary  occupancy  of 
the  territory  west  of  the  line  that  had  been  established  to  the  Rocky 
Mountains.  The  boundary  from  the  Rocky  Mountains  to  the  Pacific 
Ocean  was  agreed  to  by  the  Treaty  of  1846. 

1827. 
COMMERCIAL  CONVENTION. 

Concluded  August  6,  1827 ;  ratification  advised  by  the  Senate  Jan 
uary  9,  1828;  ratified  by  the  President  January  12,  1828;  rati 
fications  exchanged  April  2,  1828;  proclaimed  May  15,  1828 
(Treaties  and  Conventions,  1889,  p.  428.) 

U.  S.  Treaties  1904,  p.  316;  8  Stats,  at  Large,  361. 

This  convention  indefinitely  extended  in  force  the  Commercia 
Convention  of  July  3, 1815. 


APPENDIX    II.  669 

AETICLES. 

I.  Commercial  convention  continued.       III.  Katification. 
II.  Duration. 

1827. 

CONVENTION  RELATIVE  TO  THE  NORTHEASTERN  BOUNDARY. 

Concluded  September  29,  1827 ;  ratification  advised  ~by  the  Senate 
January  14, 1828;  ratified  ~by  the  President  February  12, 1828; 
ratifications  exchanged  April  2,  1828;  proclaimed  May  15, 
1828.  (Treaties  and  Conventions,  1889,  p.  429.) 

U.  S.  Treaties  1904,  p.  318;  8  Stats,  at  Large,  362. 

The  determination  of  the  northeastern  boundary  by  the  com- 
mission as  provided  for  in  Article  Y  of  the  Treaty  of  Ghent  not 
having  been  agreed  to,  it  was  referred  by  this  convention  of  eight 
articles  to  the  King  of  the  Netherlands,  who  on  January  10,  1831, 
submitted  an  award  which  was  not  accepted  by  the  two  govern- 
ments. The  boundary  was  finally  determined  by  the  convention  of 
August  9,  1842. 

1842. 

CONVENTION  AS  TO  BOUNDARIES,  SUPPRESSION  OF  SLAVE  TRADE,  AND 

EXTRADITION.1 

( WEBSTER- ASHBURTON  TREATY.) 

Concluded  August  9,  1842;  ratification  advised  ~by  the  Senate  Au- 
gust 20, 1842;  ratified  ~by  the  President  August  22, 1842;  ratifi- 
cations exchanged  October  13,  1842;  proclaimed  November  10, 
1842.  (Treaties  and  Conventions,  1889,  p.  432.) 

U.  S.  Treaties  1904,  p.  318;  8  Stats,  at  Large,  572. 

1  In  re  Kaine,  14  How.  103,  14  L.  Wood.  &  M.    66,    Fed.    Cas.    12,734; 

ed.  345;    United  States  v.  Eauscher,  Ex  parte  Kaine,  3  Blatchf.   1,  Fed 

119  U.  S.  407,  7  Sup.  Ct.  Eep.  234,  Cas.  No.  7597;    Ex  parte  Van  Aer- 

30  L.   ed.  425;     Bryant    v.    United  nam,  3  Blatchf.   160,  Fed.  Cas.   No. 

States,     167     U.     S.     104,     17     Sup.  16,824;    United    States    v.  Caldwell, 

Ct.    Eep.    744,    42    L.    ed.   941;     In  8  Blatchf.  131,  Fed.  Cas.  No.  14,707; 

re    Kelley,    2    Low.    339,    Fed.    Cas.  In   re   MacDonnell,    11    Blatchf.    79, 

No.  7655;    In  re  Dugan,  2  Low.  367,  170,    Fed.     Cas.    No.    8771;     United 

Fed.   Cas.  4120;    Ex  parte    Eoss,    2  States  v.  Lawrence,  13  Blatehf.  295, 

Bond,  252,  Fed.  Cas.  No.  12,069;   The  Fed.  Cas.  No.  15,573;    In  re  Fowler, 
British  Prisoners  (In  re  Sheazle),  1 


670 


APPENDIX  II. 


AETICLES. 


I.  Northwestern   boundary   agreed 

to. 
II.  Northern  boundary,  Lake  Huron 

to  Lake  of  the  Woods. 
III.  Navigation  of  St.  John  Eiver. 
IV.  Confirmation      of      prior      land 

grants. 

V.  Distribution  of  "Disputed  ter- 
ritory fund." 


V.  Commission   to    mark   northeast- 
ern boundary  line. 
VII.  Channels  open  to  both  parties. 
VIII.  Suppression  of  slave  trade. 
IX.  Eemonstrances      with      other 

powers. 
X.  Extradition  of  fugitives  from 

justice. 
XL  Duration. 
XII.  Ratification. 


1846. 

TREATY  ESTABLISHING  BOUNDARY  WEST  OF  THE  ROCKY  MOUNTAINS.1 

Concluded  June  15,  1846 ;  ratification  advised  by  the  Senate  June 
18,  1846;  ratified  ~by  the  President  June  19,  1846;  ratifications 
exchanged  July  17,  1846 ;  proclaimed  August  5,  1846.  (Treat- 
ies and  Conventions,  1889,  p.  438.) 

IT.  S.  Treaties  1904,  p.  324;  9  Stats,  at  Large,  Treaties,  24. 

AETICLES. 

I.  Boundary       established;       free  IV.  Property  of  Puget's  Sound  Ag- 

navigation.  ricultural  Company. 

II.  Navigation  of  Columbia  Eiver.  V.  Ratification. 
III.  Property  rights. 


4  Fed.  303,  18  Blatchf.  430;  Ex  parte 
Lane,  6  Fed.  34;  United  States  v. 
Watts,  8  Saw.  370,  14  Fed.  130;  In 
re  Wadge,  15  Fed.  864,  16  Fed.  332, 
21  Blatchf.  300;  In  re  Tully,  20 
Fed.  812;  In  re  Miller,  23  Fed.  32; 
In  re  Kelley,  25  Fed.  268 ;  In  re  Kel- 
ly, 26  Fed.  852;  Ex  parte  Hibbs,  26 
Fed.  421;  In  re  Ferrelle,  28  Fed. 
878;  In  re  McPhun,  30  Fed.  57;  In 
re  Fergus,  30  Fed.  607;  In  re  Herres, 
33  Fed.  165;  In  re  Charleston,  34 
Fed.  531;  In  re  Eeintz,  39  Fed.  204, 
4  L.  E.  A.  236;  In  re  Cross,  43  Fed. 
517;  In  re  Mineau,  45  Fed.  188; 


Hall  v.  Patterson,  45  Fed.  352;  In 
re  Carrier,  57  Fed.  578;  In  re  Ster- 
naman,  77  Fed.  595;  Sternaman  v. 
Peck,  80  Fed.  883,  26  C.  C.  A. 
214,  83  Fed.  690,  28  C.  C.  A.  377; 
In  re  Newman,  79  Fed.  622;  In  re 
Bryant,  80  Fed.  282;  In  re  Orpen, 
86  Fed.  760;  Wright  v.  Henkel,  190 
U.  S.  45,  23  Sup.  Ct.  Eep.  781,  47  L. 
ed.  948;  Cohn  v.  Jones,  100  Fe< 
639. 

'See  McKay  v.  Campbell,  2  S* 
118,   Fed.    Gas.    No.    8840;    Town 
De  Haven,  5  Saw.  146,  Fed.  Cas.  No. 
14,113. 


APPENDIX  II.  671 


1850. 

CONVENTION  AS  TO  SHIP  CANAL  CONNECTING  ATLANTIC  AND  PACIFIC 

OCEANS. 

(CLAYTON-BULWER  TREATY.) 

Concluded  April  19,  1850;  ratification  advised  by  the  Senate  May 
22,  1850;  ratified  ~by  the  President  May  23,  1850;  ratifications 
exchanged  July  4,  1850;  proclaimed  July  5,  1850.  (Treaties 
and  Conventions,  1889,  p.  440.) 

U.  S.  Treaties  1904.  p.  327;  9  Stats,  at  Large,  Treaties,  174. 

This  convention  is  superseded  by  the  convention  concluded  No- 
vember 18,  1901. 

1850. 

PROTOCOL  OF  A  CONFERENCE  HELD  AT  THE  FOREIGN  OFFICE,  DECEM- 
BER 9,  1850,  CEDING  HORSESHOE  REEF  TO  THE  UNITED 'STATES. 

U.  S.  Treaties  1904,  p.  327. 


1853. 

CLAIMS  CONVENTION.1 

Concluded  February  8,  1853;  ratification  advised  by  the  Senate 
March  15,  1853;  ratified  by  the  President  March  17,  1853; 
ratifications  exchanged  July  26,  1853;  proclaimed  August  20, 
1853.  (Treaties  and  Conventions,  1869,  p.  445.) 


U.  S.  Treaties  1904,  p.  328;  10  Stats,  at  Large,  Treaties,  110. 

The  commission  authorized  by  this  convention  of  seven  articles 
met  at  London,  September  15,  1853,  and  adjourned  January  15, 
1855.  The  claims  considered  by  the  commission  were  all  those 
arising  since  December  24,  1814,  and  remaining  unsettled.  The 
awards  in  favor  of  American  claimants  amounted  to  $329,734.16, 
and  to  British  claimants  $277,102.88. 

1  See  One  Hundred  etc.  Feet  of  Pine  Lumber,  4  Blatehf.  182,  Fed.  Gas.  No. 
10,523. 


67'2  APPENDIX   II. 


1854. 

RECIPROCITY  TREATY  AS  TO  FISHERIES,  DUTIES,  AND  NAVIGATION, 
BRITISH  NORTH  AMERICAN  COLONIES. 

Concluded  June  5,  1854;  ratification  advised  by  the  Senate  August 
2,  1854;  ratified  by  the  President  August  9,  1854;  ratifications 
exchanged  September  9,  1854;  proclaimed  September  11,  1854. 
(Treaties  and  Conventions,  1889,  p.  448.) 

U.  S.  Treaties  1904,  p.  328;  10  Stats,  at  Large,  Treaties,  199. 
This  treaty,  consisting  of  seven  articles,  granted  mutual  liberty  of 
sea  fisheries  on  the  northeastern  coast  of  the  United  States  and  the 
British  North  American  provinces;  it  provided  for  the  reciprocal 
free  admission  of  certain  articles,  the  produce  of  the  British  col- 
onies or  of  the  United  States,  and  the  right  to  navigate  S.  Lawrence 
River  and  the  canals  connecting  the  Great  Lakes  with  the  Atlantic 
and  Lake  Michigan.  It  was  terminated  by  notice  from  the  United 
States  March  17,  1866.  The  commission  authorized  by  Article  I 
to  designate  the  places  reserved  from  the  common  right  of  fishing 
met  in  August,  1855,  and  ceased  to  exist  by  the  termination  of  the 
treaty.  Nearly  all  the  work  had  been  accomplished  when  the  com- 
mission dissolved. 

1854. 

CLAIMS  CONVENTION. 

Concluded  July  17,  1854;  ratification  advised  by  the  Senate  July 
21,  1854;  ratified  by  the  President  July  24,  1854;  ratifications 
exchanged  August  18,  1854;  proclaimed  September  11,  1854. 
(Treaties  and  Conventions,  1889,  p.  453.) 

U.  S.  Treaties  1904,  p.  329;  10  Stats,  at  Large,  Treaties,  213. 
By  this  convention  the  existence  of  the  claims  commission  under 
the  convention  of  1853  was  extended  four  months. 

1862. 
TREATY  FOR  THE  SUPPRESSION  OF  AFRICAN  SLAVE  TRADE. 

Concluded  April  7 ,  1862;  ratification  advised  by  the  Senate  April 
24,  1862;  ratified  by  the  President  April  25,  1862;  ratifications 
exchanged  May  20,  1862;  proclaimed  June  7 ,  1862.  (Treaties 
and  Conventions,  1889,  p.  454.) 

U.  S.  Treaties  1904,  p.  329;   12  Stats,  at  Large,  1225. 


APPENDIX  II.  673 

ARTICLES. 

I.  Search  of  suspected  slavers  by  VII.  No    compensation    to    vessels 

war  vessels.  with  slave  equipments. 

II.  Authority  and  procedure.  VIII.  Disposal  of  vessels  condemned. 

III.  Indemnity  for  losses.  IX.  Punishment  of   owners,   crew, 

IV.  Mixed  courts  established.  etc. 

V.  Eeparation  for  wrongful  seiz-  X.  Eelease   of  negroes. 

ures.  XL  Instructions  and  regulations. 

VI.  Evidences  of  slave  trading.  XII.  Katification;   duration. 


1863. 

ADDITIONAL   ARTICLES  TO  THE  TREATY   FOR   THE   SUPPRESSION   OF 

SLAVE  TRADE,  1862. 

Concluded  February  17,  1863;  ratification  advised  ~by  the  Senate 
February  27,  1863;  ratified  by  the  President  March  5,  1863; 
ratifications  exchanged  April  lf  1863;  proclaimed  April  22, 
1863.  (Treaties  and  Conventions,  1889,  p.  466.) 

U.  S.  Treaties  1904,  p.  335;  13  Stats,  at  Large,  645. 

This  treaty  extends  the  right  of  visit  and  detention  to  within 
thirty  leagues  of  Madagascar,  Porto  Eico,  and  Santo  Domingo. 


1863. 
CLAIMS  TREATY. 


Concluded  July  1,  1863;  ratification  advised  by  the  Senate  Janu- 
ary 18,  1864;  ratified  by  the  President  March  2,  1864;  ratifica- 
tions exchanged  March  3,  1864;  proclaimed  March  5,  1864. 
(Treaties  and  Conventions,  1889,  p.  467.) 

U.  S.  Treaties  1904,  p.  336;  13  Stats,  at  Large,  651. 

By  this  treaty  the  claims  of  the  Hudson 's  Bay  Company  and  the 
Puget's  Sound  Agricultural  Company  against  the  United  States 
were  referred  to  a  commission.  The  commission  met  in  Washing- 
ton January  7,  1865,  and  on  September  10,  1869,  rendered  their 
awards  of  $450,000  to  the  Hudson's  Bay  Company,  and  $200,000  to 
the  Puget  's  Sound  Agricultural  Company. 
Treaties — 43 


674  APPENDIX  n. 

1870. 
NATURALIZATION  CONVENTION. 

Concluded  May  13,  1870;  ratification  advised  by  the  Senate  July  8, 
1870;  ratified  by  the  President  July  19,  1870;  ratifications  ex- 
changed August  10,  1870;  proclaimed  September  16,  1870. 
(Treaties  and  Conventions,  1889,  p.  470.) 

U.  &  Treaties  1904,  p.  336;  16  Stats,  at  Large,  775. 

AETICLES. 

I.  Naturalization    recognized.  III.  Resumption  of  original  citizen- 

II.  Renunciation  of  previous  natur-  ship. 

alization.  IV.  Ratification. 

1870. 

CONVENTION  FOR  THE  SUPPRESSION  OF  SLAVE  TRADE. 

Concluded  June  3,  1870;  ratification  advised  by  the  Senate  July  8, 
1870;  ratified  by  the  President  July  19,  1870;  ratifications  ex- 
changed August  10,  1870;  proclaimed  September  16,  1870. 
(Treaties  and  Conventions,  1889,  p.  472.) 

U.  S.  Treaties  1904,  p.  338;  16  Stats,  at  Large,  777. 

ARTICLES. 

I.  Mixed  courts   abolished.  V.  Former  treaty  continued. 

II.  Jurisdiction  over  vessels  seized.         VI.  Notification    of    effect    of    con- 
Ill.  Procedure.  vention. 
IV.  Instructions  to  war  ships.                 VII.  Duration;  ratification. 

1871. 
CONVENTION  AS  TO  RENUNCIATION  OF  NATURALIZATION. 

Concluded  February  23,  1871;  ratification  advised  by  the  Senate 
March  22,  1871;  ratified  by  the  President  March  24,  1871; 
ratifications  exchanged  May  4,  1871;  proclaimed  May  5,  1871. 
(Treaties  and  Conventions,  1889,  p.  476.) 

U.  S.  Treaties  1904,  p.  342;  17  Stats,  at  Large,  841. 
The  Naturalization  Convention  of  1870  provided  for  the  renun- 
ciation of  citizenship  acquired  prior  to  that  time  in  either  coun- 
try, and  agreed  that  the  manner  of  making  such  renunciation  should 
be  subsequently  determined  upon.  This  convention  designated  the 
time  and  method  of  making  such  renunciation  of  acquired  citizen- 
ship. 


APPENDIX  II. 


675 


1871. 

TREATY  FOR  THE  SETTLEMENT  OF  ALL  CAUSES  OF  DIFFERENCE.1 
(TREATY  OF  WASHINGTON.) 

Concluded  May  8,  1871;  ratification  advised  by  the  Senate  May  24, 
1871;  ratified  by  the  President  May  25,  1871;  ratifications  ex- 
changed June  17,  1871;  proclaimed  July  4,  1871.  (Treaties 
and  Conventions,  1889,  p.  478.) 

U.  S.  Treaties  1904,  p.  343;  17  Stats,  at  Large,  863. 
(Only  the  articles  now  in  force  are  printed.) 

ARTICLES. 


I  to  XI,  inclusive,  relate  to  the  Tri- 
bunal for  arbitration  of  the  Ala- 
bama Claims,  and  terminated  by 
the  rendering  of  the  award  at 
Geneva,  September  14,  1872,  of 
$15,500,000  to  the  United  States. 

XII  to  XVII,  inclusive,  provided  for 

tthe  reference  of  Civil  War 
claims  against  both  govern- 
ments to  a  commission  which, 
met  at  Washington,  September 
26,  1871,  and  held  its  final  meet- 
ing September  25,  1873,  award- 
ing $1,929,819  gold  to  Great 
Britain.  The  claims  of  United 
States  citizens  against  Great 
Britain  were  all  disallowed. 
XVIII  to  XXV,  relating  to  the  Fish- 
eries, were  terminated  July  1, 
1885,  upon  notice  given  in  pur- 
suance of  a  joint  resolution  of 
March  3,  1883  (U.  S.  Stats., 
Vol.  22,  p.  641).  Articles  XXII 
to  XXV,  inclusive,  provided  for 
the  appointment  of  a  commis- 
sion to  ascertain  the  amount  of 
compensation  to  be  awarded 
Great  Britain  for  fishery  privi- 
leges granted  under  Article 


XVIII.  The  commission  met  at 
Halifax,  Nova  Scotia,  June  15, 
1877,  and  November  23,  1877, 
awarded  to  Great  Britain  $5,- 
500,000  in  gold. 

XXVI.  Navigation  of  St.  Lawrence, 
Yukon,   Porcupine,    and   Stikine 
Rivers. 

XXVII.  Reciprocal  use  of  canals. 

XXVIII  related  to  the  navigation  of 
Lake  Michigan  and  expired  by 
its   own   limitation. 

XXIX  related  to  bonding  privileges 
and  is  not  considered  in  effect. 
(See   Messages   and    Papers    of 
Presidents,  Vol.  9,  p.  335.) 

XXX.  Reciprocal  transportation  in 
vessels.     This    article    was    ter- 
minated July  1,  1885,  upon  no- 
tice given  by  the  United  States. 

XXXI.  Timber  on  river  St.  John. 
XXXII   and   XXXIII   relate   to   the 

fisheries  and  were  terminated 
July  1,  1885. 

XXXIV  to  XLH  provide  for  the  ar- 
bitration by  the  Emperor  of 
Germany  of  the  northwestern 
water  boundary.  (See  p.  346.) 

XLIII.     Ratification. 


*See  Weld  &  Co.  v.  United  States,  23  Ct.  of  Cl.  126. 


676  APPENDIX  II. 

1873. 

ADDITIONAL  ARTICLE  TO  TREATY  OF  MAY  8,  1871,  RESPECTING  MEET- 
ING PLACE  FOR  THE  COMMISSION  UNDER  ARTICLE  XII. 
Concluded  January  18,  1873;  ratification  advised  by  the  Senate 
February  14,  1873;  ratified  by  the  President  February  28, 
1873;  ratifications  exchanged  April  10, 1873;  proclaimed  April 
15,  1873.     (Treaties  and  Conventions,  1889,  p.  494.) 

U.  S.  Treaties  1904,  p.  348;  17  Stats,  at  Large,  947. 
This  article  permitted  the  commission  to  hold  its  meetings  at 
other  places  than  Washington. 

1877. 

DECLARATION  AFFORDING  RECIPROCAL  PROTECTION  TO  TRADEMARKS. 

Concluded  October  24, 1877 ;  ratification  advised  by  the  Senate  May 

22,  1878;  ratified  by  the  President  May  25,  1878;  no  exchange 

of  ratifications  made;  proclaimed  July  17, 1878.     (Treaties  and 

Conventions,  1889,  p.  501.) 

U.  S.  Treaties  1904,  p.  349;  20  Stats,  at  Large,  703. 

1889. 
EXTRADITION  CONVENTION.1 

Concluded  July  12,  1889;  ratification  advised  by  the  Senate  with 
amendments  February  18,  1890;  ratified  by  the  President  Feb- 
ruary 25,  1890;  ratifications  exchanged  March  11,  1890;  pro- 
claimed March  25, 1890. 

U.  S.  Treaties  1904,  p.  349;  26  Stats,  at  Large,  1508. 

AETICLES. 

I.  Additional      extraditable  V.  Crimes    committed     in     other 

crimes.  countries. 

II.  Political  crimes.  JL  P™ednre. 

VII.  Escaped  convicts. 
III.  Prior  offenses.  vm    No  prior  effect 

IV.  Delivery  of  articles   seized.  IX.  Eatification;  duration. 

1  See  Bryant  v.  United  States,  167  Ames,    180   U.   S.   371,  ^21   Sup.   Cl 

U.  S.  104,  17  Sup.  Ct.  Eep.  744,  42  L.  Eep.  406,  45  L.  ed.  577;   Wright  v. 

ed.   94;    In  re   Breen,   75   Fed.   458;  Henkel,   190   U.   S.   45,   23   Sup.   Ct. 

In  re  Bryant,  80  Fed.  282;  Cosgrove  Eep.  781,  47  L.  ed.  948;  In  re  Tay- 

v.   Winney,   174  U.  S.   641,   19   Sup.  lor,  118  Fed.  196;  In  re  Wright,  123 

Ct.  Eep.  598,  43  L.  ed.  897;  Eice  v.  Fed.  463;  In  re  Frank,  107  Fed.  272. 


APPENDIX   II.  677 

1892. 
CONVENTION  RELATING  TO  FUR  SEALS  IN  BERING  SEA. 

Concluded  February  29,  1892;  ratification  advised  by  Senate  March 

29,  1892;  ratified  by  President  April  22,  1892;  ratifications 
exchanged  May  7,  1892;  proclaimed  May  9,  1902. 

U.  S.  Treaties  1904,  p.  352;  27  Stats,  at  Large,  947. 

ARTICLES. 

I.  Tribunal.  IX.  Eeport. 

II.  Meeting;    agent.  X.  Expenses. 

III.  Submission  of  case.  XI.  Decision. 

IV.  Procedure.  XII.  Arbitration   expenses. 

V.  Arguments.  XIII.  Record. 

VI.  Points  for  decision.  XIV.  Final  settlement. 
VII.  Regulations  to  preserve  seals.          XV.  Ratification. 
VIII.  Liabilities  for  injuries. 

1892. 

CONVENTION  FOR  THE  RENEWAL  OF  THE  EXISTING  MODUS  VIVENDF 

IN  BERING  SEA. 

Concluded  April  18,  1892;  ratification  advised  by  the  Senate  April 
19,  1892;  ratified  by  the  President  April  22,  1892;  ratifications 
exchanged  May  7,  1892;  proclaimed  May  9,  1892. 

U.  S.  Treaties  1904,  p.  366;  27  Stats,  at  Large,  952. 

By  this  convention  of  seven  articles  both  governments  prohibited 
the  killing  of  fur  seals  by  their  respective  citizens  and  subjects  in 
the  eastern  part  of  Bering  Sea  during  the  pendency  of  the  fur-seal 
arbitration. 

1892. 
TREATY  FOR  THE  RECOVERY  OF  DESERTERS  FROM  MERCHANT  VESSELS. 

I    Concluded  June  3,  1892;  ratification  advised  by  the  Senate  June 

30,  1892;  ratified  by  the  President  July  14,  1892;  ratifications 
exchanged  August  1,  1892;  proclaimed  August  1,  1892. 

U.  S.  Treaties  1904,  p.  366;  27  Stats,  at  Large,  961. 

ARTICLES. 

•I 

I.  Arrests  of   deserting  seamen.  III.  Duration. 

II.  Ratifications. 


678  APPENDIX  II. 


1892. 

CONVENTION    FOR    DELIMITING    BOUNDARIES    NOT    PERMANENTLY 

MARKED. 

Concluded  July  22, 1892;  ratification  advised  ~by  the  Senate  July  25, 
1892;  ratified  by  the  President  July  29,  1892;  ratifications  ex- 
changed August  23,  1892;  proclaimed  August  26,  1892. 

IT.  S.  Treaties  1904,  p.  368;  27  Stats,  at  Large,  955. 

ARTICLES. 

I.  Commissions  to  survey  Alaskan        II.  Commission  to  mark  the  bound- 
boundary,  ary  in  Passamaquoddy  Bay. 

III.  Ratification. 


1894. 

CONVENTION  EXTENDING  THE  TERMS  OF  THE  ALASKAN  BOUNDARY 

COMMISSIONS. 

Concluded  February  3,  1894;  ratification  advised  by  the  Senate 
February  12,  1894;  ratified  by  the  President  February  15, 
1894;  ratifications  exchanged  March  28,  1894;  proclaimed 
March  28,  1894. 

IT.  S.  Treaties  1904,  p.  370;  28  Stats,  at  Large,  1200. 

ARTICLES. 
I.  Term  of  commissions  extended.        II.  Ratification. 


1896. 

CLAIMS  CONVENTION. 

Concluded  February  8,  1896 ;  ratification  advised  by  the  Senate 
with  amendments  April  15,  1896 ;  ratified  by  the  President 
April  23,  1896;  ratifications  exchanged  June  3,  1896;  pro- 
claimed June  11, 1896. 

U.  S.  Treaties  1904,  p.  371;  29  Stats,  at  Large,  844. 

This  convention  provided  for  a  commission  to  settle  the  claims  pre- 
sented by  Great  Britain  for  the  losses  sustained  by  the  seizures  of 


APPENDIX  II.  679 

British  vessels  for  fur  sealing  in  the  Bering  Sea,  under  the  provi- 
sions of  the  award  of  the  Paris  Tribunal  of  1893.  The  two  com- 
missioners authorized  by  the  convention  held  their  first  session  at 
Victoria,  British  Columbia,  November  25,  1896,  and  December  17, 
1897,  rendered  an  award  of  $473,151.26  against  the  United  States. 


1898. 

PROTOCOL  OF  THE  CONFERENCES  AT  WASHINGTON  IN  MAY,  1898, 
PRELIMINARY  TO  THE  APPOINTMENT  OF  A  JOINT  COMMISSION 
FOR  THE  ADJUSTMENT  OF  QUESTIONS  AT  ISSUE  BETWEEN  THE 
UNITED  STATES  AND  GREAT  BRITAIN,  IN  RESPECT  TO  THE  RELA- 
TIONS OF  THE  FORMER  WITH  THE  DOMINION  OF  CANADA. 


1899. 

CONVENTION  AS  TO  TENURE  AND  DISPOSITION  OF  REAL  AND  PERSONAL 

PROPERTY. 

Concluded  March  2, 1899;  ratification  advised  by  the  Senate  March 
22,  1900;  ratified  by  the  President  July  16,  1900;  ratifications 
exchanged  July  28,  1900 ;  proclaimed  August  6,  1900. 

U.  S.  Treaties  1904,  p.  375;  31  Stats,  at  Large,  1939. 

AETICLES. 

I.  Disposition  of  real  property.  V.  Most  favored  nation  treatment. 

II.  Disposition    of    personal     prop-  VI.  Duration. 

erty.  VLT.  Eatification. 

III.  Decease  of  property  holder.  Accession    of    Colonies    of    Great 

IV.  Not    applicable   to    colonies    or  Britain   to    convention, 
possessions. 


1899. 

MODUS  VIVENDI  WITH  GREAT  BRITAIN,  FIXING  A  PROVISIONAL 
BOUNDARY  LINE  BETWEEN  THE  TERRITORY  OF  ALASKA  AND 
THE  DOMINION  OF  CANADA  ABOUT  THE  HEAD  OF  LYNN  CANAL. 

Concluded  October  20,  1899. 
U.  S.  Treaties  1904,  p.  378. 


680  APPENDIX  II. 

1900. 

SUPPLEMENTARY  EXTRADITION  TREATY. 

Concluded  December  13,  1900;  ratification  advised  by  Senate 
March  8,  1901;  ratified  by  President  March  28,  1901;  ratifica- 
tions exclianged  April  22,  1901;  proclaimed  April  22,  1901. 

U.  S.  Treaties  1904,  p.  379;  32  Stats,  at  Large,  1864. 

AETICLES. 

I.  Extraditable  crimes.  12,  1899;     ratification;     dura- 

II.  Extradition   convention    of   July  tion. 

1901. 

TREATY  TO  FACILITATE  THE  CONSTRUCTION  OF  A  SHIP  CANAL. 

Concluded  November  18,  1901;  ratification  advised  by  Senate  De- 
cember 16,  1901;  ratified  by  President  December  26,  1901; 
ratifications  exchanged  February  21,  1902;  proclaimed  Feb- 
ruary 22,  1902. 

U.  S.  Treaties  1904,  p.  380;  32  Stats,  at  Large,  1903. 

AETICLES. 

I.  Convention    of   April    19,    1850.       IV.  Change  of  sovereignty. 
II.  Construction  of  canal.  V.  Ratification. 

III.  Eules    of    neutralization. 

1902. 

SUPPLEMENTARY  CONVENTION  AS  TO  TENURE  AND  DISPOSITION  OF 
REAL  AND  PERSONAL  PROPERTY. 

Concluded  January  13,  1902;  ratification  advised  by  Senate  Feb- 
ruary 17,  1902;  ratified  by  the  President  March  7,  1902;  rati- 
fications exchanged  April  2,  1902;  proclaimed  April  2,  1902. 

U.  S.  Treaties  1904,  p.  377;  32  Stats,  at  Large.  1914. 
1902. 

TREATY  AS  TO  IMPORT  DUTIES  IN  ZANZIBAR. 

Concluded  May  31,  1902;  ratification  advised  by  Senate  June  3( 
1902;  ratified  by  President  July  22,  1902;  ratifications 
changed  October  17,  1902;  proclaimed  October  17,  1902. 

U.  S.  Treaties  1904,  p.  382;  32  Stats,  at  Large,  1959. 


APPENDIX  H.  681 

AETICLES. 

I.  Import  duties.  III.  Most  favored  nation  treatment 

II.  Most  favored  nation  treatment  as  to  commercial  interests. 

as   to    duties. 


1903. 
TREATY  AS  TO  LIGHT  AND  HARBOR  DUES  IN  ZANZIBAR. 

Concluded  June  5,  1903;  ratification  advised  by  Senate  November 
25,  1903;  ratified  by  President  December  8,  1903;  ratifications 
exchanged  December  24,  1903;  proclaimed  December  24,  1903. 

U.  S.  Treaties  1904,  p.  384;    33  Stats,  at  Large,  pt.  2,  p.  2172. 

AETICLES. 

I.  Collection    of    light    and    harbor        II.  Lighthouses;  consent  of  powers, 
dues.  III.  Ratification. 


1903. 
CONVENTION  AS  TO  ALASKAN  BOUNDARY. 

Concluded  January  24,  1903;  ratification  advised  by  Senate  Feb- 
ruary 11,  1903;  ratified  by  President  February  24,  1903;  rati- 
fications exchanged  March  3, 1903;  proclaimed  March  3,  1903. 

U.  S.  Treaties  1904,  p.  384;  32  Stats,  at  Large,  1961. 

AETICLES. 

I.  Tribunal.  V.  Meeting. 

II.  Procedure.  VI.  Decision. 

III.  Treaties    considered.  VII.  Ratification. 
IV.  Questions  to  be  decided. 

DECISION  OF  THE  ALASKAN  BOUNDARY  TRIBUNAL  UNDER  THE 
TREATY  OF  JANUARY  24,  1903,  BETWEEN  THE  UNITED  STATES 
AND  GREAT  BRITAIN. 

U.  S.  Treaties  1904,  p.  390. 

Seven  questions  were  submitted  to  the  tribunal  and  the  decision 
was  dated  October  20,  1903.     The  tribunal  consisted  of  six  jurists. 


682  APPENDIX  II. 


1905. 

TREATY  BETWEEN  THE  UNITED  STATES  AND  GREAT  BRITAIN  BY 
WHICH  THE  UNITED  STATES  RELINQUISHES  EXTRATERRITORIAL 
EIGHTS  IN  ZANZIBAR. 

Signed  at  Washington,  February  25,  1905;  ratification  advised  by 
the  Senate  March  8,  1905;  ratified  by  the  President,  May  12, 
1905;  ratified  by  Great  Britain,  April  3,  1905;  ratifications 
exchanged  at  Washington  June  12,  1905;  proclaimed  June  12, 
1905. 

Treaties  and  Proclamations,  2870;  34  Stats,  at  Large,  pt.  3. 

ARTICLES. 

I.  Extraterritorial      rights      relin-         II.  Authority  to  British  courts, 
quished    in    British    Protector-       III.  Ratification, 
ate   of   Zanzibar — Jurisdiction 
of  consular  courts  renounced. 


1905. 

SUPPLEMENTARY  CONVENTION  BETWEEN  THE  UNITED  STATES  AND 

GREAT  BRITAIN  FOR  THE  EXTRADITION  OF  CRIMINALS. 
\ 

Signed  at  London,  April  12,  1905;  ratification  advised  by  the  Sen- 
ate December  13,  1905 ;  ratified  by  the  President  December  21, 
1906;  ratified  by  Great  Britain  November  14,  1906;  ratifica- 
tions exchanged  at  Washington  December  21, 1906;  proclaimed 
February  12, 1907. 

Treaties  and  Proclamations,    2903;    34   Stats,   at   Large,   pt.   3. 

ARTICLES. 
I.  Crimes    added.  II.  Former  treaty  applicable. 


APPENDIX  II.  683 

1906. 

CONVENTION  BETWEEN  THE  UNITED  STATES  AND  GREAT  BRITAIN 
PROVIDING  FOR  THE  SURVEYING  AND  MARKING  OUT  UPON  THE 
GROUND  OF  THE  141ST  DEGREE  OF  WEST  LONGITUDE  WHERE 
SAID  MERIDIAN  FORMS  THE  BOUNDARY  LINE  BETWEEN  ALASKA 
AND  THE  BRITISH  POSSESSIONS  IN  NORTH  AMERICA. 

Signed  at  Washington  April  21,  1906 ;  ratification  advised  by  the 
Senate  April  25, 1906;  ratified  by  the  President  July  10,  1906; 
ratified  by  Great  Britain  June  9,  1906 ;  ratifications  exchanged 
at  Washington  August  16,  1906;  proclaimed  August  21,  1906. 

Treaties  and  Proclamations,  2948;    34  Stats,  at  Large,  pt.  3. 

ARTICLES. 

I.  Commissioners,  etc.  IV.  Eeports. 

II.  Boundary  line  monuments.  V.  Ratification. 

III.  Expenses. 


GREECE. 

1837. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  December  22,  1837 ;  ratification  advised  by  the  Senate 
March  26,  1838;  ratified  by  the  President  April  12,  1838; 
ratifications  exchanged  June  13,  1838;  proclaimed  August 
30,  1838.  (Treaties  and  Conventions,  1889,  p.  502.) 

IT.  S.  Treaties  1904,  p.  394;    8  Stats,  at  Large,  498. 

ARTICLES. 

I.  Freedom  of  commerce.  X.  Vessels  entering  without  un- 

II.  Tonnage  duties,  etc.  loading. 

III.  Imports.  XI.  Unloading  part  of  cargo. 

IV.  Exports.  XII  ^  These  articles  abrogated  by 

V.  Coasting   trade.  xnl  I      treaty  concluded  Nov.  19, 

VI.  Government  purchases.  XIV.  f     1902. 

VIE.  Navigation  duties.  ~'~ 

,TTT_    __        _.       ....  •>.,•  XV.  Quarantine. 

K;on*1SCrlImnatmg    P™hlbl-          XVI.  Blockades. 

XVH.  Duration. 
IX.  Transit,  bounties,  and  draw- 

XVIII.  Ratification, 
backs. 


684  APPENDIX  II. 

1902. 
CONSULAR  CONVENTION. 

Concluded  November  19,  1902  (December  2,  1902);  ratification  ad- 
vised by  Senate  February  16,  1903 ;  ratified  by  President  May 
20,  1903;  ratifications  exchanged  July  9,  1903;  proclaimed 
July  11,  1903. 

U.  S.  Treaties  1904,  p.  399:    33  Stats,  at  Large,  pt.  2,  p.  2122. 

ARTICLES. 

I.  Consular  officers.  IX.  Application   to    authorities. 

II.  Most  favored  nation  consular  X.  Notarial  powers. 

privileges,  etc.  XI.  Estates   of   deceased   persons. 

III.  Exemptions.  XII.  Shipping    disputes. 

IV.  Testimony  by  consuls.  XIII.  Deserters  from  ships. 

V.  Arms    and    flag.  XIV.  Damages  to  vessels  at  sea. 

VI.  Immunities     of      offices  and  XV.  Shipwrecks  and  salvage, 

archives.  XVI.  Examination  on  vessels. 

VII.  Acting   officers.  XVII.  Ratification;    duration. 

Vice-consuls  and  agents. 


GUATEMALA. 

1849. 
TREATY  OP  PEACE,  FRIENDSHIP,  COMMERCE  AND  NAVIGATION. 

Concluded  March  3,  1849;  ratification  advised  by  the  Senate  Sep- 
tember 24,  185,0;  time  for  exchange  of  ratifications  extended 
by  the  Senate  September  27,  1850,  and  again  June  7,  1852; 
ratified  by  the  President  November  14,  1850;  ratifications  ex* 
changed  May  13,  1852;  proclaimed  July  28,  1852.  (Treaties 
and  Conventions,  1889,  p.  508.) 

IT.  S.  Treaties  1904,.  p.  405;    10  Stats,  at  Large,  Treaties,  1. 

This  treaty  of  thirty-three  articles  was  terminated  by  notice 
November  4,  1874. 


APPENDIX  II.  685 

1901. 
TRADEMARK  CONVENTION. 

Concluded  April  15,  1901;  ratification  advised  by  Senate  January 
27,  1902;  ratified  by  President  February  1,  1902;  ratifications 
exchanged  April  3,  1902;  proclaimed  April  11,  1902. 
U.  S.  Treaties  1904,  p.  405;    32  Stats,  at  Large,  1866. 

AETICLES. 

I.  Reciprocal  rights.  IH.  Duration. 

II.  Formalities.  VI.  Ratification. 

1901. 

CONVENTION  RELATING  TO  TENURE  AND  DISPOSITION  OF  REAL  AND 
PERSONAL  PROPERTY. 

Concluded  August  27,  1901;  ratification  advised  by  Senate  Jan- 
uary 30,  1902;  ratified  by  President  February  6,  1902;  rati- 
fications  exchanged  September  16,  1902;  proclaimed  Septem- 
ber 18,  1902. 

U.  S.  Treaties  1904,  p.  406;    32  Stats,  at  Large,  1944. 

ARTICLES. 

I.  Disposition  of  real  property.  IV.  Duration. 

II.  Disposition  of  personal  property.          V.  Ratification. 
III.  Notice    of   decease    of   citizens, 
etc. 

1903. 
EXTRADITION  TREATY. 

Concluded  February   27,   1903;   ratification    advised   by   Senate 
March  11,  1903;  ratified  by  President  July  8,  1903;  ratifica- 
tions exchanged  July  16,  1903;  proclaimed  July  17,  1903. 
U.  S.  Treaties  1904,  p.  408;    33  Stats,  at  Large,  pt.  2,  2147. 

ARTICLES. 

I.  Delivery  of  accused.  IX.  Provisional  arrest. 

II.  Extraditable  offenses.  X.  Procedure. 

III.  Offense    for    which    tried.  XI.  Expenses. 

IV.  Political    offenses.  XII.  Property  in  possession  of  ac- 

V.  Nondelivery  of  citizens.  cused. 

VI.  Deferring  extradition.  XIH.  Crimes    by    citizens     of     one 

VII.  Persons      claimed     by     other  against     other     contracting 

countries.  power. 

VHI.  Limitations.  XIV.  Duration;    ratification. 


686 


APPENDIX   II. 


HAYTI. 

1864. 
TREATY  OF  AMITY,  COMMERCE  AND  NAVIGATION,  AND  EXTRADITION. 

Concluded  November  3,  1864;  ratification  advised  by  the  Senate 
January  17,  1865;  ratified  by  the  President  May  18,  1865; 
ratifications  exchanged  May  22,  1865 ;  proclaimed  July  6, 
1865,.  (Treaties  and  Conventions,  1889,  p.  551.) 

U.  S.  Treaties  1904,  p.  414;    13  Stats,  at  Large,  711. 


ARTICLES. 

I.  Amity.  XXIII. 

II.  Most       favored       nation  XXIV. 

treatment.  XXV. 

III.  Immunity  in  case  of  war.  XXVI. 

IV.  Confiscations  prohibited.  XXVII. 
V.  Personal    exemptions    of 

citizens.  XXVIII. 
VI.  Trade  privileges.  XXIX. 
VII.  Privacy  of  books  and  pa- 
pers. XXX. 
VIII.  Eeligious  freedom. 
IX.  Disposal  of  personal  prop-  XXXI. 

erty. 

X.  Imports.  XXXII. 

XI.  Exports.  XXXIII. 

XII.  Coasting  trade.  XXXIV. 

XIII.  Equality    of    duties    and  XXXV. 

prohibitions.  XXXVI. 

XIV.  Discriminating  duties.  XXXVII. 
XV.  Eights    of    asylum. 

XVI.  Shipwrecks.  XXXVIII. 

XVII.  Neutrality  of  vessels. 

XVIII.  Blockades.  XXXIX. 

XIX.  Free  ships,  free  goods.  XL. 

XX.  Contraband  articles.  XLI. 

XXI.  Goods  not  contraband.  XLII. 

XXII.  Merchant  ships.  XLIII. 


Papers  of  neutral  vessels. 

Eight  of  search. 

Ships  under  convoy. 

Captures. 

Care  of  property  cap- 
tured. 

Prize  courts. 

Entry  of  captured  ves- 
sels. 

Eestriction  on  foreign 
privateers. 

Letters  of  marque  forbid- 
den. 

Diplomatic  privileges. 

Consular    service. 

Exequaturs. 

Consular  privileges. 

Deserters  from  ships. 

Consular  convention  to 
be  concluded. 

Extradition  of  fugitives 
from  justice. 

Extraditable  crimes. 

Surrender;   expenses. 

Political  offenses. 

Duration. 

Ratification. 


APPENDIX  II.  687 

1902. 
NATURALIZATION  TREATY. 

Concluded  March  22,  1902;  ratification  advised  by  Senate  Feb- 
ruary 1,  1904;  ratified  by  President  March  17,  1904;  ratifica- 
tions exchanged  March  19,  1904;  proclaimed  March  24,  1904. 

U.  S.  Treaties  1904,  p.  425;    33  Stats,  at  Large,  pt.  2,  p.  2101. 

AETICLES. 

I.  Eeciprocal   recognition   of  citi-  IV.  Punishment  of  citizens. 

zens.  V.  Declaration  of  intention. 

II.  Kenunciation  of  nationality.  VI.  Duration. 

III.  Intent  to   return.  VII.  Eatification. 

1903. 
NATURALIZATION  TREATY  (EXTENSION). 

Concluded  February  28,  1903;  ratification  advised  by  Senate  Feb- 
ruary 1,  1904;  ratified  by  President  March  17,  1904;  ratifica- 
tions exchanged  March  19,  1904;  proclaimed  March  24,  1904. 

U.  S.  Treaties  1904,  p.  427;    33  Stats,  at  Large,  pt.  2,  p.  2157. 

This  treaty  extends  the  period  for  the  exchange  of  ratifications 
of  the  naturalization  treaty  of  February  28,  1903,  for  twelve 
months  from  March  22,  1903. 


1904. 

TREATY  BETWEEN  THE  UNITED  STATES  AND  THE  REPUBLIC  OF  HAYTI 
FOR  THE  MUTUAL  EXTRADITION  OF  CRIMINALS. 

Signed  at  Washington,  August  9,  1904;  ratification  advised  by  the 
Senate,  December  15,  1904;  ratified  by  the  President  June 
17,  1905;  ratified  by  Hayti  August  25,  1904;  ratifications  ex- 
changed at  Washington  June  28,  1905;  proclaimed  June  28, 
1905. 

Treaties  and  Proclamations,  2858;    34  Stats,  at  Large,  pt.  3. 


688  APPENDIX  II. 

AETICLES. 

I.  Eeciprocal  delivery  of  persons  VIII.  Trial    to    be    only   for   offense 

charged  with  crimes.  for  which  extradited. 

II.  Extraditable  crimes.  IX.  Application  for  provisional  ar- 

III.  Attempts  to  commit  crimes.  rest. 

IV.  Neither  party  bound  to  deliv-  X.  Requisitions. 

er   up   its   own   citizens.  XI.  Evidence  required. 

V.  Persons  under  prosecution  in  XII.  Disposal     of     articles     seized 

country  where  found.  with  person. 

VI.  Persons     claimed     by      other  XIII.  Expenses. 

countries.  XIV.  Applicable    to    United    States 

VII.  No  surrender  for  political  of-  insular  possessions, 

fenses.  XV.  Effect. 

XVI.  Exchange  of  ratifications. 


HANOVEE. 

Hanover  was  conquered  and  merged  into  Prussia  in  1866,  and  is 
now  included  in  the  German  Empire. 

1840. 
TREATY  OP  COMMERCE  AND  NAVIGATION. 

Concluded  May  20,  1840;  ratification  advised  by  the  Senate  July 
15,  1840;  ratified  by  the  President  July  28,  1840;  ratifications 
exchanged  November  14,  1840;  proclaimed  January  2,  1841. 
(Treaties  and  Conventions,  1889,  p.  528.) 

U.  S.  Treaties  1904,  p.  428;    8  Stats,  at  Large,  552. 

This  treaty,  consisting  of  ten  articles,  was  superseded  by  the 
treaty  of  1846. 

1846. 

TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  June  10,  1846;  ratification  advised  by  the  Senate  Jan- 
uary 6,  1847 ;  ratified  by  the  President  July  28,  1847 ;  rati- 
fications exchanged  March  15, 1847 ;  proclaimed  April  24,  1847. 
(Treaties  and  Conventions,  1889,  p.  523.) 

U.  S.  Treaties  1904,  p.  428;    9  Stats,  at  Large,  Treaties,  55. 

This  treaty  of  thirteen  articles  terminated  on  the  merging  of  the 
country  into  the  Kingdom  of  Prussia. 


APPENDIX  II.  689 

1855. 
EXTRADITION  TREATY. 

Concluded  January  18,  185,5;  ratification  advised  by  the  Senate 
March  13, 1855;  ratified  by  the  President  March  18,  1855;  rati- 
fications exchanged  April  17,  1855;  proclaimed  May  5,  1855. 
(Treaties  and  Conventions,  1889,  p.  528.) 

IT.  S.  Treaties  1904,  p.  428. 

This  treaty  of  six  articles  terminated  in  1866,  when  Hanover  was 
merged  into  the  Kingdom  of  Prussia. 

1861. 
CONVENTION  ABOLISHING  STADE  OR  BRUNSHAUSEN  DUES. 

Concluded  November  6,  1861;  ratification  advised  by  the  Senate 
February  3,  1862;  ratified  by  the  President  February  7,  1862; 
ratifications  exchanged  April  29,  1862;  proclaimed  June  17, 

I      186 2.     (Treaties  and  Conventions,  1889,  p.  530.) 
U.  S.  Treaties  1904,  p.  428;    12  Stats,  at  Large,  1187. 

This  treaty,  consisting  of  seven  articles,  terminated  on  the  incor- 
poration of  the  Kingdom  into  Prussia. 


HANSEATIC  REPUBLICS. 

(BREMEN,  HAMBURG,  AND  LUBECK.) 

The  Hanseatic  Republics  were  incorporated  into  the  North  Ger- 
man Union  July  1,  1867. 

1827. 
CONVENTION  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  December  20,  1827;  ratification  advised  by  the  Senate 
January  7,  1828;  ratified  by  the  President;  ratifications  ex- 
changed June  2,  1828;  proclaimed  June  2,  1828.  (Treaties 
and  Conventions,  1889,  p.  533.) 

U.  S.  Treaties  1904,  p.  429;    8  Stats,  at  Large,  366. 
Treaties — 44 


690  APPENDIX   II. 

ARTICLES. 

I.  Equality   of   duties.  VIII.  Special   protection   to    persons 

II.  Import  and  export  duties.  and  property. 

III.  Government  purchases.  IX.  Most     favored    nation    privi- 

IV.  Proof  of  Hanseatic  vessels.  leges. 

V.  Rights  to  trade.  ,       X.  Duration. 

VI.  Commercial    privileges.  .     XI.  Ratification. 
VII.  Property  rights. 

1828. 
ADDITIONAL  ARTICLE  TO  CONVENTION  OF  1827. 

Concluded  June  4,  1828;  ratification  advised  by  the  Senate  De- 
cember 29,  1828;  ratified  by  the  President;  ratifications  ex- 
changed January  14, 1829;  proclaimed  July  29,  1829.  (Treat- 
ies and  Conventions,  1889,  p.  537.) 

U.  S.  Treaties  1904,  p.  433;    8  Stats,  at  Large,  386. 

This  article,  relating  to  the  arrest  of  deserters  at  the  request 
of  consuls,  was  superseded  by  the  consular  convention  with  the 
German  Empire,  1871. 

1852. 
CONSULAR  CONVENTION. 

Concluded  April  30,  1852;  ratification  advised  by  the  Senate 
August  30, 1852;  ratified  by  the  President  September  24,  1852; 
ratifications  exchanged  February  25,  1853;  proclaimed  June 
6,  1853.  (Treaties  and  Conventions,  1889,  p.  538.) 

U.  S.  Treaties  1904,  p.  433;    10  Stats,  at  Large,  Treaties,  95. 

This  convention  of  three  articles  was  superseded  by  the  gen- 
eral consular  convention  of  the  German  Empire,  1871. 


HAWAIIAN  ISLANDS. 

The  cession  of  the  Hawaiian  Islands  to  the  United  States  hav- 
ing been  accepted  by  the  resolution  approved  by  the  President 
July  7,  1898  (30  Stats,  at  Large,  75),  the  treaties  with  that 
country  terminated  upon  the  formation  of  the  government  for  the 
islands. 


APPENDIX   II.  691 


1849. 

TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION  AND  EXTRA- 
DITION. 

Concluded  December  20,  1849;  ratification  advised  by  the  Senate 
January  14,  1850;  ratified  by  the  President  February  4,  1850; 
ratifications  exchanged  August  24,  1850 ;  proclaimed  Novem- 
ber 9,  1850.  (Treaties  and  Conventions,  1889,  p.  540.) 

IT.  S.  Treaties  1904,  434;    9  Stats,  at  Large,  Treaties,  178. 


1875. 

TREATY  OF  RECIPROCITY.1 

Concluded  January  30,  1875;  ratification  advised  by  the  Senate 
March  18,  1875;  ratified  by  the  President  May  31,  1875;  rati- 
fications exchanged  June  3,  1875 ;  proclaimed  June  3,  1875. 
(Treaties  and  Conventions,  1889,  p.  546.) 

U.  S.  Treaties  1904,  434;    19  Stats,  at  Large,  Treaties,  69. 

By  this  treaty  of  six  articles  certain  specified  articles  were  ad- 
mitted free  of  duty  into  the  United  States  and  the  Hawaiian 
Islands  respectively. 

1884. 
TREATY  OF  RECIPROCITY.1 

Concluded  December  6,  1884;  ratification  advised  by  the  Senate 
with  amendments  January  20,  1887 ;  ratified  by  the  President 
November  7,  1887 ;  ratifications  exchanged  November  9,  1887 ; 
proclaimed  November  9,  1887.  (Treaties  and  Conventions, 
1889,  p.  1187.) 

IT.  S.  Treaties  434;    25  Stats,  at  Large,  1399. 

By  this  treaty  the  Reciprocity  Treaty  of  1875  was  extended  for  a 
further  term  of  seven  years,  and  there  was  granted  to  the  United 
States  the  exclusive  right  to  establish  a  coaling  station  at  Pearl 
River  Harbor. 

1  See  Nethercleft  v.  Kobertson,  23  Blatchf.  548,  27  Fed.  737. 


692  APPENDIX  II. 


HESSE. 

(See  NORTH  GERMAN  CONFEDERATION.) 
1844. 

CONVENTION  ABOLISHING  DROIT  D'AUBAINE  AND  TABLES  ON  EMI- 
GRATION. 

Concluded  March  26,  1844;  ratification  advised  by  the  Senate  June 
12,  1844;  ratified  by  the  President  June  22,  1844;  ratifications 
exchanged  October  16, 1844;  time  for  exchange  of  ratifications 
extended  to  July  4,  1845,  and  exchange  'previous  thereto  de- 
clared regular  by  the  Senate  January  13,  1845;  proclaimed 
May  8,  1845.  (Treaties  and  Conventions,  1889,  p.  562.) 

U.  S.  Treaties  1904,  p.  435;    9  Stats,  at  Large,  Treaties,  1. 

AETICLES. 

I.  Droit  d'aubaine,  etc.,  abolished.       IV.  Eights  of  absent  heirs. 
II.  Disposition    of    real    estate.  V.  Inheritance  disputes. 

IH.  Disposition  of  personal  property.        VI.  Batification. 

1868. 
NATURALIZATION  CONVENTION. 

Concluded  August  1, 1868;  ratification  advised  by  the  Senate  April 
12,  1869;  ratified  by  the  President  April  18,  1869;  ratifications 
exchanged  July  23,  1869;  proclaimed  August  31,  1869. 
(Treaties  and  Conventions,  1889,  p.  563.) 

U.  S.  Treaties  1904,  p.  437;    16  Stats,  at  Large,  743. 

AETICLES. 

I.  Naturalization  recognized.  IV.  Eenunciation   of   acquired   citi- 

II.  Prior    offenses.  zenship. 

in.  Extradition.  V.  Duration. 

VI.  Eatification. 


APPENDIX  II.  693 


HONDURAS. 

1864. 
TREATY  OF  FRIENDSHIP,  COMMERCE  AND  NAVIGATION. 

Concluded  July  4,  1864;  ratification  advised  by  the  Senate  Febru- 
ary 20,  1865;  ratified  by  the  President  March  9,  1865;  ratifica- 
tions exchanged  May  5,  1865;  proclaimed  May  30,  1865. 
(Treaties  and  Conventions,  1889,  p.  566.) 

IT.  S.  Treaties  1904,  p.  439;    13  Stats,  at  Large,  699. 

AETICLES. 

I.  Amity.  IX.  Exemptions  from  military  ser- 

II.  Freedom  of  commerce;  coast-                       vice,  loans,  etc. 

ing  trade.  X.  Diplomatic  and  consular  privi- 

III.  Most     favored     nation  privi-                       leges. 

leges.  XL  Protection  in  case  of  war. 

IV.  Equality  of  import  and  export         XII.  General  liberties. 

duties.  XIII.  Duration    of    Articles    IV,    V, 

V.  Shipping  dues.  and  VI. 

VI.  Reciprocal    treatment    of   ves-  XIV.  Neutrality  of  Honduras  Inter- 

sels.  oceanic   Railway. 

VII.  Protection  of  property,  etc.  XV.  Ratification. 
III.  Disposal    of    property,    etc. 


ITALY. 

1868. 
CONSULAR  CONVENTION. 

Concluded  February  8,  1868;  ratification  advised  by  the  Senate 
June  17,  1868;  ratified  by  the  President  June  22,  1868;  rati- 
fications exchanged  September  17,  1868;  proclaimed  February 
23,  1869.  (Treaties  and  Conventions,  1889,  p.  573.) 

IT.  S.  Treaties  1904,  p.  446;    15  Stats,  at  Large,  605. 

This  convention,  consisting  of  seventeen  articles,  was  superseded 
»y  the  convention  of  1878  upon  the  exchange  of  ratifications  Sep- 
ember  17,  1878. 


694  APPENDIX   II. 

1868. 
EXTRADITION  CONVENTION.1 

Concluded  March  23,  1868;  ratification  advised  with  an  amend- 
ment by  the  Senate  June  17,  1868;  ratified  by  the  President 
June  22,  1868;  ratifications  exchanged  September  17,  1868: 
proclaimed  September  30,  1868.  (Treaties  and  Conventions, 
1889,  p.  578.) 

U.  S.  Treaties  1904,  p.  446;    15  Stats,  at  Large,  629. 

AETICLES. 

I.  Delivery  of  accused.  V.  Procedure. 

II.  Extraditable   crimes.  VI.  Expenses. 

III.  Political  offenses.  VII.  Duration;   ratification. 

IV.  Persons  under  arrest. 

1869. 
CONSULAR  CONVENTION. 

Concluded  January  21,  1869;  ratification  advised  by  the  Senate 
February  16,  1869;  ratified  by  the  President  February  24, 
1869;  ratifications  exchanged  May  7,  1869;  proclaimed  May 
11,  1869.  (Treaties  and  Conventions,  1889,  p.  577.) 

U.  S.  Treaties  1904,  p.  448;    16  Stats,  at  Large,  769. 

This  was  an  article  extending  the  time  for  the  exchange  of  th 
ratifications  of  the  Consular  Convention  of  1868. 


1869. 
CONVENTION  ADDITIONAL  TO  EXTRADITION  CONVENTION,  1868. 

Concluded  January  21,  1869;  ratification  advised  by  the  Senat 
February  16,  1869;  ratified  by  the  President  February  23 
1869;  ratifications  exchanged  May  7,  1869;  proclaimed  May 
11,  1869.     (Treaties  and  Conventions,  1889,  p.  580.; 

U.  S.  Treaties  1904,  p.  449;    16  Stats,  at  Large,  767. 
1  See  In  re  De  Giacoma,  12  Blatchf.  391,  Fed.  Gas.  No.  3747. 


APPENDIX  II.  695 

ADDITIONAL  AETICLE  RELATING  TO  THE  CEIME  OF  EMBEZZLE- 
MENT.1 

It  is  agreed  that  the  concluding  paragraph  of  the  second  Article 
of  the  Convention  aforesaid  shall  be  so  amended  as  to  read  as  fol- 
lows: 

8.  Embezzlement  by  any  person  or  persons  hired  or  salaried,  to 
the  detriment  of  their  employers  when  these  crimes  are  subject  to 
infamous  punishment  according  to  the  laws  of  the  United  States, 
and  criminal  punishment  according  to  the  laws  of  Italy. 

In  witness  whereof  the  respective  Plenipotentiaries  have  signed 
the  present  Article  in  duplicate  and  have  affixed  thereto  the  seal  of 
their  arms. 

Done  at  Washington  the  21st  day  of  January,  1869. 

WILLIAM  H.  SEWARD.     [SEAL  ] 
M.  CERRUTI.  [SEAL] 

1871. 

TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  February  26,  1871;  ratification  advised  by  the  Senate 
April  15,  1871;  ratified  by  the  President  April  29,  1871;  rati- 
fications exchanged  November  18,  1871;  proclaimed  November 
23,  1871.     (Treaties  and  Conventions,  1889,  p.  581.) 
U.  S.  Treaties  1904,  p.  449. 

ARTICLES. 

I.  Freedom   of    commerce     and  XIV.  Regulation  of  blockade. 

navigation.  XV.  Contraband  articles. 

II.  Liberty  to  trade  and  travel.  XVI.  Eights     of     neutrals;     free 

III.  Eights   of  person  and  prop-  ships,  free  goods. 

erty;  exemptions.  XVII.  Proof  of  nationality  of  ves- 

IV.  Embargo.  sels. 

V.  No  shipping  discriminations.  XVIII.  Eight   of   search. 

VI.  No    discriminations    of    im-  XIX.  Vessels  under  convoy. 

ports  and  exports.  XX.  Conduct   of    commanders    of 

VII.  Shipping  privileges.  war  vessels. 

VIII.  Exemptions     from     shipping  XXI.  Protection   in   case    of   war. 

dues,  etc.  XXII.  Disposal  of  property. 

IX.  Shipwrecks.  XXIII.  Legal  rights. 

X.  Completing   crews.  XXIV.  Most    favored    nation    privi- 

XI.  Piratical  captures.  leges. 

.  Exemptions  in  war.  XXV.  Duration. 

II.  Blockade.  XXVI.  Eatification. 

4See  Cantini  v.  Tillman,  54  Fed.  S.  138,  22  Sup.  Ct.  Eep.  72,  46  L. 
969;  Storti  v.  Massachusetts,  183  U.  ed.  120. 


696  APPENDIX  II. 

1878.1 
CONSULAR  CONVENTION. 

Concluded  May  8,  1878;  ratification  advised  ~by  the  Senate  May  28, 
1878;  ratified  by  the  President  June  4,  1878;  ratifications  ex- 
changed September  18,  1878;  proclaimed  September  27,  1878. 
(Treaties  and  Conventions,  1889,  p.  538.) 

U.  S.  Treaties  1904,  p.  457;    20  Stats,  at  Large,  725. 

AETICLES. 

I.  Consular   recognition.  XI.  Shipping  disputes. 

II.  Exequaturs.  XII.  Disputes  between  passengers 

III.  Exemptions.  and  officers  of  vessels. 
IV.  Status  in  legal  proceedings.          XIII.  Deserters  from  ships. 

V.  Arms  and  flags.  XIV.  Damages    at    sea. 

VI.  Archives.  XV.  Shipwrecks. 

VII.  Vacancies.  XVI.  Death  of  citizens. 

VIII.  Vice-consuls   and   agents.  XVII.  Most    favored   nation    privi- 

IX.  Dealings  with  officials.  leges. 

X.  General  powers.  XVIII.  Duration;  ratification. 

1881. 

CONVENTION  SUPPLEMENTAL  TO  CONSULAR  CONVENTION,  1878. 

Concluded  February  24,  1881;  ratification  advised  by  the  Senate 
May  5,  1881;  ratified  by  the  President  May  10,  1881;  ratifica- 
tions exchanged  June  18,  1881;  proclaimed  June  29,  1881. 
(Treaties  and  Conventions,  1889,  p.  593.) 

U.  S.  Treaties  1904,  p.  462;    22  Stats,  at  Large,  831. 

AETICLES. 

I.  Shipping  disputes;  substitute  for        II.  Eatification    and    effect, 
article    XI. 

1882. 

TRADEMARK  DECLARATION. 

Signed  June  1,  1882;  ratification  advised  by  the  Senate  February 
25,  1881;  proclaimed  March  19,  1884.  (Treaties  and  Con- 
ventions, 1889,  p.  595.) 

U.  S.  Treaties  1904,  p.  463. 


1  See  The  Salomoni,  29  Fed.  534. 


APPENDIX  II.  697 

1884. 
CONVENTION  ADDITIONAL  TO  EXTRADITION  CONVENTION,  1868. 

Concluded  June  11,  1884;  ratification  advised  by  the  Senate  July 
5,  1884;  ratified  by  the  President  April  10,  1885 ;  ratifications 
exchanged  April  24, 1885:  proclaimed  April  24,  1885.  (Treat- 
ies and  Conventions,  1889,  p.  595.) 

IT.  S.  Treaties  1904,  p.  464;    24  Stats,  at  Large,  1001. 

ARTICLES. 

I.  Kidnaping    added    to    extradit-         II.  Preliminary  detention, 
able  crimes.  III.  Effect;   ratification. 

1900. 

RECIPROCAL   COMMERCIAL  ARRANGEMENT  WITH   ITALY. 

Concluded  February  8,  1900;  proclaimed  July  18,  1900. 

U.  S.  Treaties  1904,  p.  465;    31  Stats,  at  Large,  1979. 

AETICLES. 

I.  Concessions     by      the      United         II.  Concessions  by  Italy. 
States.  III.  Approval;  duration. 


JAPAN. 

1854. 
TREATY  OF  PEACE,  AMITY,  AND  COMMERCE. 

Concluded  March  31,  1854;  ratification  advised  by  the  Senate  July 
15, 1854;  ratified  by  the  President  August  7,  1854;  ratifications 
exchanged  February  21,  1855 ;  proclaimed  June  22,  1855. 
(Treaties  and  Conventions,  1889,  p.  597.) 

U.  S.  Treaties  1904,  p.  468;    11  Stats,  at  Large,  597. 


T>98  APPENDIX  II. 


AETICLES. 

I.  Peace  and  amity.  VI.  Business. 

II.  Opening  of  Simoda  and  Hako-  VII.  Trade. 

dade.  VIII.  Supplies   to   vessels. 

III.  Shipwrecks.  IX.  Most    favored    nation    privi- 

IV.  Treatment  of  shipwrecked  per-  leges. 

sons.  X.  Open  ports. 

V.  Shipwrecked    persons     at     Si-  XI.  Consuls. 

moda   and   Hakodade.  XII.  Eatification. 

This  treaty  of  twelve  articles  was  superseded  from  July  17,  1899, 
by  treaty  of  November  22,  1894,  Article  XVIII. 


1857.1 
COMMERCIAL  AND  CONSULAR  TREATY. 

Concluded  June  17,  1857 ;  ratification  advised  by  the  Senate  June 
15,,  1858;  ratified  by  the  President  June  30,  1858;  proclaimed 
June  30,  1858.  (Treaties  and  Conventions,  1889,  p.  599.) 

U.  S.  Treaties  1904,  p.  468;    11  Stats,  at  Large,  723. 
This  treaty  of  nine  articles  was  superseded  by  the  treaty  of  1858. 


1858. 
TREATY  OP  COMMERCE  AND  NAVIGATION. 

Concluded  July  29, 1858;  ratification  advised  by  the  Senate  Decem- 
ber 15,  1858;  ratified  by  the  President  April  12,  1860;  ratifi- 
cations exchanged  May  22,  1860;  proclaimed  May  23,  1860. 
(Treaties  and  Conventions,  1889,  p.  601.) 

U.  S.  Treaties  1904,  p.  468;    12  Stats,  at  Large,  1051. 

This  treaty  containing  fourteen  articles  was  superseded  on  Jub 
17,  1899,  by  treaty  of  November  22,  1894,  Article  XVIII. 

1  See  Boss  v.  Mclntyre,   140  U.  S.   453,   11   Sup.   Ct.  Eep.   897,  35  L. 
581. 


APPENDIX   II.  699 

1864. 
CONVENTION  FOR  THE  REDUCTION  OF  IMPORT  DUTIES. 

Concluded  January  28,  1864;  ratification  advised  ~by  the  Senate 
February  21,  1866;  ratified  by  the  President  April  9,  1866; 
proclaimed  April  9, 1866.  (Treaties  and  Conventions,  1889,  p. 
610.) 

U.  S.  Treaties  1904,  p.  469;    14  Stats,  at  Large,  655. 

This  convention  of  four  articles  was  superseded  by  the  conven- 
tion of  1866,  below. 

1864. 
CONVENTION  FOR  THE  PAYMENT  OF  THE  SIMONOSEKI  INDEMNITIES. 

Concluded  October  22, 1864;  ratification  advised  ~by  the  Senate  Feb- 
ruary 21,  1866 ;  ratified  by  the  President  April  9,  1866 ;  pro- 
claimed April  9,  1866.  (Treaties  and  Conventions,  1889,  p. 
611.) 

U.  S.  Treaties  1904,  p.  469;    14  Stats,  at  Large,  665. 

This  convention,  between  Japan  and  the  United  States,  Great 
Britain,  France,  and  the  Netherlands,  provided  for  the  payment  of 
$3,000,000  to  the  four  powers. 


1866. 

CONVENTION  ESTABLISHING  TARIFF  OF  DUTIES  BETWEEN  JAPAN  AND 
THE  UNITED  STATES,  GREAT  BRITAIN,  FRANCE,  AND  THE  NETH- 
ERLANDS. 

Concluded  June  25,  1866;  ratification  advised  by  the  Senate  June 
17,  1868.     (Treaties  and  Conventions,  1889,  p.  612.) 

U.  S.  Treaties  1904,  p.  469. 

This  treaty  containing  twelve  articles  was  not  proclaimed  and 
was  superseded  July  17,  1899,  by  the  treaty  of  November  22,  1894. 


700  APPENDIX  II. 

1878. 
COMMERCIAL  CONVENTION. 

Concluded  July  25, 1878;  ratification  advised  by  the  Senate  Decem- 
ber 18,  1878;  ratified  by  the  President  January  20,  1879;  rati- 
fications exchanged  April  8,  1879;  proclaimed  April  8,  1879. 
(Treaties  and  Conventions,  1889,  p.  621.) 

U.  S.  Treaties  1904,  p.  469;    20  Stats,  at  Large,  797. 

This  treaty  containing  ten  articles  was  superseded  July  17,  1899, 
by  the  treaty  of  November  22,  1894. 

1880. 
CONVENTION  FOR  REIMBURSING  SHIPWRECK  EXPENSES. 

Concluded  May  17,  1880;  ratification  advised  by  the  Senate  March 
23,  1881;  ratified  by  the  President  April  7,  1881;  ratifica- 
tions exchanged  June  16,  1881;  proclaimed  October  3,  1881. 
(Treaties  and  Conventions,  1889,  p.  624.) 

U.  S.  Treaties  1904,  p.  470;    22  Stats,  at  Large,  815. 
1886. 

EXTRADITION  TREATY. 

Concluded  April  29,  1886;  ratification  advised  by  the  Senate  with 
amendments  June  21,  1886;  ratified  by  the  President  July  13, 
1886;  ratifications  exchanged  September  27,  1886;  proclaimed 
November  3,  1886.  (Treaties  and  Conventions,  1889,  p.  625.) 

U.  S.  Treaties  1904,  p.  471;    24  Stats,  at  Large,  1015. 

AETICLES. 

I.  Delivery  of  accused.  VI.  Temporary  detention. 

II.  Extraditable  crimes.  VII.  Delivery  of  citizens. 

III.  Persons  under  arrest.  VIII.  Expenses. 

IV.  Political  offenses.  IX.  Duration;  ratification. 
V.  Procedure. 


APPENDIX  II. 


701 


1894. 
TREATY  OF  COMMERCE  AND  NAVIGATION.1 

Concluded  November  22,  1894;  ratification  advised  by  the  Senate 
with  amendments  February  5,  1895 ;  ratified  by  the  President 
February  15,  1895;  ratifications  exchanged  March  21,  1895 ; 
proclaimed  March  21, 1895. 

U.  S.  Treaties  1904,  p.  474;    29  Stats,  at  Large,  848. 
AETICLES. 


I.  Mutual    freedom    of    trade, 
travel,  etc.;  taxes;  exemp- 
tions. 
II.  Commerce  and  navigation. 

III.  Inviolability     of     dwellings, 

etc. 

IV.  Import  duties. 
V.  Export  duties. 

VI.  Transit  dues,  etc. 
VII.  Equality  of  shipping. 
VIII.  Tonnage,  etc.,  dues. 
IX.  Port  regulations. 

X.  Coasting  trade. 
XI.  Vessels     in     distress,     ship- 
wrecks, etc. 


XII.  Nationality  of  vessels. 

XIII.  Deserters  from  ships. 

XIV.  Favored  nation  privileges. 
XV.  Consular  officers. 

XVI.  Patents,  trademarks  and  de- 
signs. 

XVII.  Abolition   of   foreign  settle- 
ments  in   Japan. 

XVIII.  Former  treaties  superseded. 
XIX.  Date  of  taking  effect. 
XX.  Ratification. 
Protocol. 


1897. 
CONVENTION  AS  TO  PATENTS,  TRADEMARKS,  AND  DESIGNS. 

Concluded  January  13,  1897 ;  ratification  advised  by  the  Senate 
February  1,  1897;  ratified  by  the  President  February  2,  1897 : 
ratifications  exchanged  March  8,  1897 ;  proclaimed  March  9, 
1897. 

U.  S.  Treaties  1904,  p.  482;    29  Stats,  at  Large,  860. 

1  See  The  Japanese  Immigrant  Case,  189  U.  S.  86,  23  Sup.  Ct.  Rep.  611, 
47  L.  ed.  721. 


702  APPENDIX  II. 

1905. 
COPYRIGHT  CONVENTION  BETWEEN  THE  UNITED  STATES  AND  JAPAN. 

Signed  at  Tokio  November  10,  1905;  ratification  advised  by  the 
Senate  February  28,  1906 ;  ratified  by  the  President  March 
7,  1906;  ratified  by  Japan  April  28,  1906;  ratifications  ex- 
changed at  Tokio  May  10,  1906;  proclaimed  May  17,  1906. 
(Treaties  and  Proclamations,  2890.) 

Treaties  and  Proclamations,  2890;    34  Stats,  at  Large,  pt.  3. 

AETICLES. 

I.  Reciprocal  rights  to  citizens  of        II.  Translation  of  books,  etc.,  with- 
eaeh  country.  out  authorization. 

III.  Ratification. 

1906. 

SUPPLEMENTARY  CONVENTION  BETWEEN  THE  UNITED  STATES  AND 
JAPAN  FOR  THE  EXTRADITION  OF  CRIMINALS. 

Signed  at  Tokio  May  17,  1906;  ratification  advised  by  the  Senate 
June  22,  1906;  ratified  by  the  President  June  28,  1906;  rati- 
fied by  Japan  September  22,  1906;  ratifications  exchanged  at 
Tokio,  September  25,  1906;  proclaimed  September  26,  1906. 

Treaties  and  Proclamations,  2951;    34  Stats,  at  Large,  pt.  3,  p.  2951. 

ARTICLE. 
I.     Extraditable  crimes   (adding  embezzlement  and  larceny). 


KONGO. 

(CONGO.) 

1884. 
DECLARATION  AS  TO  THE  INTENTION  OF  THE  INTERNATIONAL  Ai 

CIATION  OF  THE   CONGO  AND  THE  RECOGNITION  OF  ITS  FLAG 

THE  UNITED  STATES,  SIGNED  APRIL  22,  1884.     (ADVISED  BY  i 
SENATE,  APRIL  10,  1884.) 

U.  S.  Treaties  1904,  p.  483;    23  Stats,  at  Large,  781. 


APPENDIX  II.  703 

1891. 
TREATY  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  January  24,  1891;  ratification  advised  ~by  the  Sen- 
ate January  11,  1892;  ratified  by  the  President  January  19, 
1892;  ratifications  exchanged  February  2,  1892;  proclaimed 
April  2,  1892. 

U.  S.  Treaties  1904,  p.  484;    27  Stats,  at  Large,  926. 

AETICLES. 

I.  Freedom     of     commerce  and           IX.   (Not  agreed  to.) 

navigation.  X.  Import    duties. 

II.  Property  rights.  XI.  Most    favored    nation    privi- 

III.  Exemptions  of  service.  leges. 

IV.  Beligious    freedom.  XII.  Other  privileges. 

V.  Consular  officers.  XIII.  Arbitration. 

VI.  Shipping  privileges.  XIV.  Conditions. 

VII.  Transportation.  XV.  Eatification. 

VIII.  Prohibitions.  Senate  resolutions   of  ratification. 


KOREA. 

(  COREA. ) 

1882. 
TREATY  OF  PEACE,  AMITY,  COMMERCE  AND  NAVIGATION. 

Concluded  May  22,  1882;  ratification  advised  by  the  Senate  Janu- 
ary 9,  1883;  ratified  by  the  President  February  13,  1883;  rati- 
fications exchanged  May  19,  1883;  proclaimed  June  4,  1883. 
(Treaties  and  Conventions,  1889,  p.  216.) 

U.  S.  Treaties  1904,  p.  490;    23  Stats,  at  Large,  720. 

AETICLES. 

I.  Amity.  VIII.  Exportation      of      breadstuffs 

II.  Diplomatic  and  consular  privi-  and   ginseng  prohibited, 

leges.  IX.  Arms  and  ammunition. 

III.  Asylum;  shipwrecks.  X.  Employing  natives,  etc. 

IV.  Protection  in  Korea;  extrater-  XL  Privileges  to   students. 

ritoriality.  XII.  Duration. 

V.  Shipping  dues;   imports.  XIII.  Language  of  correspondence. 

VI.  Eesidence  and  travel.  XIV.  Most     favored     nation     privi- 
VH.  Opium  traflic.  leges;  ratification. 


704  APPENDIX   II. 

LEW  CHEW. 

1854. 
COMPACT  OF  FRIENDSHIP  AND  COMMERCE. 

Concluded  July  11,  1854;  ratification  advised  by  the  Senate  March 
3,  1855;  ratified  by  the  President  March  9,  1855;  proclaimed 
March  9,  1855.     (Treaties  and  Conventions,  1889,  p.  629.) 
U.  S.  Treaties  1904,  p.  496;    10  Stats,  at  Large,  Treaties,  214. 


LIBERIA. 

1862. 
TREATY  OP  COMMERCE  AND  NAVIGATION. 

Concluded  October  21,  1862;  ratification  advised  by  the  Senate 
January  9,  1863;  ratified  by  the  President  January  12,  1863; 
ratifications  exchanged  February  17,  1863 ;  proclaimed  March 
18,  1863.     (Treaties  and  Conventions,  1889,  p.  631.) 
U.  S.  Treaties  1904,  p.  498;    12  Stats,  at  Large,  1245. 

AKTICLES. 

I.  Amity.  VI.  Most     favored     nation     privi- 

II.  Freedom  of  commerce.  leges. 

III.  No  discrimination  in  vessels.  VII.  Consuls. 

IV.  Imports  and  exports.  VIII.  Noninterference  in  Liberia. 

V.  Shipwrecks  and  salvage.  IX.  Eatification. 


LUBEC. 
(See  HANSEATIC  REPUBLICS.) 


LUXEMBURG. 

1883. 
EXTRADITION  CONVENTION. 

Concluded  October  29,  1883;  ratification  advised  by  the  Senai 
July  4,  1884;  ratified  by  the  President  July  5,  1884;  ratifica- 
tions exchanged  July  14,  1884;  proclaimed  August  12,  1884. 
(Treaties  and  Conventions,  1889,  p.  634.) 

U.  S.  Treaties  1904,  p.  501;    23  Stats,  at  Large,  808. 


APPENDIX   II.  705 

ARTICLES. 

I.  Delivery  of  accused.  VII.  Procedure. 

II.  Extraditable  crimes.  VIII.  Expenses. 

III.  Trials  of  persons  surrendered.  IX.  Limitations. 

IV.  Political  offenses.  X.  Articles   in   possession    of   ac- 

V.  Delivery  of  citizens.  cused. 

VI.  Persons    under    arrest.  XI.  Duration;  ratification. 


MADAGASCAR. 

Madagascar  having  become  a  colony  of  France,  the  treaties  of 
1867  and  1881  have  become  obsolete. 


1867. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  February  14,  1867 ;  ratification  advised  by  the  Senate 
January  20,  1868;  ratified  by  the  President  January  24,  1868; 
ratifications  exchanged  July  8,  1868;  proclaimed  October  1, 
1868.  (Treaties  and  Conventions,  1889,  p.  638.) 

IT.  S.  Treaties  1904,  p.  505;    15  Stats,  at  Large,  491. 

This  treaty,  consisting  of  seven  articles,  was  superseded  by  the 
treaty  of  1881. 

1881. 
TREATY*  OF  FRIENDSHIP  AND  COMMERCE. 

Concluded  May  13,  1881;  ratification  advised  by  the  Senate  Febru- 
ary 27,  1883;  ratified  by  the  President  March  10,  1883;  ratifi- 
cations exchanged  March  12,  1883;  proclaimed  March  13,  1883. 
(Treaties  and  Conventions,  1889,  p.  641.) 

IT.  S.  Treaties  1904,  p.  505;    22  Stats,  at  Large,  952. 

This  treaty,  consisting  of  twelve  articles,  became  obsolete  when 
the  sovereignty  of  France  was  extended  over  Madagascar,  and  was 
replaced  by  ''the  whole  of  the  conventions  concluded  between 
prance  and  the  United  States.  "—Note  of  July*22,  1896,  from  the 
French  Ambassador  to  the  Secretary  of  State. 

Treaties — 45 


706  APPENDIX   II. 

MASKAT. 

(See  MUSCAT.) 


MECKLENBURG-SCHWERIN. 
(See  NORTH  GERMAN  UNION.) 

1847. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  December  9,  1847 ;  ratification  advised  by  the  Senate 
May  18,  1848;  ratified  by  the  President  May  20,  1848;  pro- 
claimed August  2,  1848.  (Treaties  and  Conventions,  1889,  p. 
653.) 

U.  S.  Treaties  1904,  p.  506;    9  Stats,  at  Large,  Treaties,  67. 

AETICLES. 

I.  Freedom  of   commerce.  VII.  Most  favored  nation  commer- 
II.  Coasting   trade.  cial  privileges. 
III.  No   preference   to   vessels   im-  VIII.  Duties     on     cotton,     rice,     to- 
porting,  bacco    and  whale-oil. 
IV.  Shipwrecks.  IX.  Consular     officers     and     func- 

V.  Extent  of  shipping  privileges.  tions. 

VI.  Duties    on     imports     and     ex-  X.  Trade   and  property  rights, 

ports.  XL  Duration;  increase  of  duties. 

1853. 

November  26,  1853,  the  Grand  Duchy  of  Mecklenburg-Schwerin 

acceded  to  the  extradition  treaty  of  1852  between  the  United  States 

and  Prussia  and  other  states  of  the  Germanic  Confederation. 

U.  S.  Treaties  1904,  p.  512;    10  Stats,  at  Large,  Treaties,  105. 


MECKLENBURG-STRELITZ. 
(See  NORTH  GERMAN  UNION.) 

1853. 

December  2,   1853,  the   Grand  Duchy  of  Mecklenburg-Strel 

acceded  to  the  extradition  treaty  of  1852  between  the  United  Sta 

and  Prussia  and  other  states  of  the  Germanic  Confederation. 

U.  S.  Treaties  1907,  p.  512;    10  Stats,  at  Large,  Treaties,  104. 


APPENDIX  II.  707 


MEXICO. 

1828. 
TREATY  OF  LIMITS. 

Concluded  January  12,  1828;  ratification  advised  by  the  Senate 
April  4,  1832;  ratified  by  the  President  April  5,  1832;  ratifi- 
cations exchanged  April  5,  1832;  proclaimed  April  5,  1832. 
(Treaties  and  Conventions,  1889,  p.  661.) 

U.  S.  Treaties  1904,  p.  513;  8  Stats,  at  Large,  372. 
This  treaty  of  three  articles  confirmed  the  boundaries  set  out 
in  the  treaty  with  Spain,  1819,  and  provided  for  a  commission  to 
run  the  line,  which  was  never  appointed.  The  accession  of  Texas 
and  the  war  with  the  United  States  and  Mexico  rendered  the  treaty 
inoperative. 

1831. 
TREATY  OF  LIMITS. 

Concluded  April  5,  1831;  ratification  advised  by  the  Senate  April 
4,  1832;  ratified  by  the  President  April  5,  1832;  ratifications 
exchanged  April  5,  1832;  proclaimed  April  5,  1832.  (Treaties 
and  Conventions,  1889,  p.  663.) 

U.  S.  Treaties  1904,  p.  513;    8  Stats,  at  Large,  376. 
This  single  article  extended  the  time  for  the  exchange  of  ratifi- 
cations of  the  treaty  of  1828,  and  expired  with  it. 

1831. 
TREATY  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  April  5,  1831;  ratification  advised  by  the  Senate  March 
23,  1832;  ratified  by  the  President  April  5,  1832;  ratifications 
exchanged  April  5,  1832;  proclaimed  April  5,  1832.  (Treaties 
and  Conventions,  1889,  p.  664.) 

U.  S.  Treaties  1904,  p.  513;    8  Stats,  at  Large,  410. 
This  treaty   of  thirty-four   articles   was  suspended   during  the 
war  between  the  United  States  and  Mexico,  1846-47,  but  was  re- 
!  vived  in  general  by  the  Treaty  of  1848,  and  finally  denounced  by 
.Mexico  November  30,  1881.1 

1  See  Atocha  v.  United  States,  8  Ct.  of  Cl.  427. 


708  APPENDIX  n. 


1835. 
TREATY  OP  LIMITS. 

Concluded  April  3,  1835;  ratification  advised  by  the  Senate  Janu- 
ary 26,  1835;  ratified  ~by  the  President  February  2,  1836;  rati- 
fications exchanged  April  20,  1836;  proclaimed  April  21,  1836. 
(Treaties  and  Conventions,  1889,  p.  675.) 

U.  S.  Treaties  1904,  p.  513;    8  Stats,  at  Large,  464. 
This  single  article  extended  the  time  for  the  appointment  of  the 
commission  to  fix  the  boundary  provided  for  in  the  Treaty  of  1828, 
but  it  was  never  appointed. 

1839. 
CLAIMS  CONVENTION.1 

Concluded  April  11,  1839;  ratification  advised  by  the  Senate  March 
17,  1840;  ratified  by- the  President  April  6,  1840;  ratifications 
exchanged  April  7,  1840;  proclaimed  April  8,  1840.  (Treaties 
and  Conventions,  1889,  p.  676.) 

IT.  S.  Treaties  1904,  p.  514;  8  Stats,  at  Large,  526. 
By  this  treaty  of  fourteen  articles  a  commission  of  four  mem- 
bers and  an  umpire  named  by  the  King  of  Prussia  was  directed  to 
be  appointed  to  adjust  the  claims  of  United  States  citizens  against 
Mexico.  The  commission  held  its  first  session  in  Washington,  D. 
C.,  August  25,  1840,  and  terminated  its  duties  February  25,  1842. 

1843. 
CLAIMS  CONVENTION. 

Concluded  January  30,  1843;  ratification    advised  by  the  Senat 
March  2,   1843;  ratified  by   the  President;   ratifications 
changed    March    29,    1843;    proclaimed    March    30,    184i 
(Treaties  and  Conventions,  1889,  p.  680.) 

U.  S.  Treaties  1904,  p.  514;    8  Stats,  at  Large,  578. 
This  treaty  of  seven  articles  provided  for  the  payment  of  tl 
awards  rendered  by  the  commission  under  the  Treaty  of  1839. 

1  See  Gill  v.  Olwer's  Exrs.,  11  How.  529. 


APPENDIX   II. 


709 


1848.1 

TREATY  OF  PEACE,  FRIENDSHIP,  LIMITS,  AND  SETTLEMENT. 
(TREATY  OF  GUADALUPE  HIDALGO.) 

Concluded  February  2,  1848;  ratification  advised  ~by  the  Senate, 
with  amendments,  March  10,  1848;  ratified  by  the  President 
March  16,  1848;  ratifications  exchanged  May  30,  1848;  pro- 
claimed July  4,  1848.  (Treaties  and  Conventions,  1889,  p. 

681.) 

U.  S.  Treaties  1904,  p.  514;    9  Stats,  at  Large,  Treaties,  108. 
AETICLES. 


I.  Declaration  of  peace. 
II.  Suspension  of  hostilities. 
III.  Withdrawal  of  troops,  etc. 
IV.  Kestoration      of      territory; 

evacuations;    prisoners. 
V.  Boundary  lines. 
VI.  Navigation  of  Gulf  of  Cali- 
fornia and  lower  Colorado 
Eiver. 
VII.  Navigation      of      Gila      and 

Bravo  Eivers. 

VIII.  Inhabitants   of   ceded    terri- 
tory. 
IX.  Acquiring      United      States 

citizenship. 
X.   (Stricken   out.) 
XI.  Protection  against  Indians. 
XII.  Payment  for  ceded  lands. 
XIII.  Payment  of  claims  awarded 
against  Mexico. 

1  See  Cross  v.  Harrison,  16  How. 
;164,  14  L.  ed.  889;  Judson  v.  Cor- 
;coran,  17  How.  612,  15  L.  ed.  231; 
McKinney  v.  Saviego,  18  How.  235, 
15  L.  ed.  365;  United  States  v.  An- 
guisola,  1  Wall.  352,  17  L.  ed.  613; 
United  States  v.  Moreno,  1  Wall. 
,400,  17  L.  ed.  633;  United  States 
Jv.  Yorba,  1  Wall.  412,  17  L.  ed. 
!635;  Townsend  v.  Greeley,  5  Wall. 
1 326,  18  L.  ed.  547;  In  re  Atocha,  17 


XIV.  Discharge  of  all  prior  claims. 
XV.  Ascertainment    of    outstand- 
ing claims. 
XVI.  Fortifications. 
XVII.  Eevival  of  former  treaties. 
XVIII.  Supplies    for    United    States 

troops  occupying  Mexico. 
XIX.  Imports        during        United 

States  occupation. 
XX.  Duties     on    imports    before 
restoration  of  Mexican  cus- 
toms authorities. 

XXI.  Arbitration    of    future    dis- 
agreements. 
XXII.  Eules  to  be  observed  in  case 

of  war. 

XXIII.  Eatification. 
Protocol. 


Wall.  439,  21  L.  ed.  696;  Basse  v. 
Brownsville,  154  U.  S.  610,  14  Sup. 
CtEep.  1195,  38  L.  ed.  651;  Boteller 
v.  Dominguez,  130  U.  S.  238,  9  Sup. 
Ct.  Eep.  525,  32  L.  ed.  926;  Seabury 
v.  Field,  1  Me  All.  1,  Fed.  Cas.  No. 
12,574;  Friedman  v.  Goodwin,  1 
Me  All.  142,  Fed.  Cas.  No.  5119; 
Tobin  v.  Walkenshaw,  1  Me  All.  186, 
Fed.  Cas.  No.  14070;  Tripp  v. 
Spring,  5  Saw.  209,  Fed.  Cas.  No. 


710 


APPENDIX  II. 


1853.1 

TREATY  OF  BOUNDARY,  CESSION  OF  TERRITORY,  TRANSIT  OF  ISTHMUS 
OF  TEHUANTEPEC,  ETC. 
(GADSDEN  TREATY.) 

Concluded  December  30,  1853;  ratification  advised  by  the  Senate 
with  amendments  April  25,  1854;  ratified  by  the  President 
June  29,  1854;  ratifications  exchanged  June  30,  1854;  pro- 
claimed June  30,  1854.  (Treaties  and  Conventions,  1889,  p. 
694.) 

U.  S.  Treaties  1904,  p.  527;    10  Stats,  at  Large,  Treaties,  123. 

ARTICLES. 


I.  Boundary  established;  survey, 
etc. 

II.  Eelease  of  obligations  as  to 
Indians. 

III.  Payment  for  territory  acquir- 
ed. 

IV.  Navigation  of  Gulf  of  Cali- 
fornia, Colorado,  and  Bravo 
Rivers. 


V.  Inhabitants    of    ceded    terri- 
tory; fortifications;  naviga- 
tion and  commerce. 
VI.  Recognition  of  land  grants. 
VII.  Adjustment    of    future    differ- 
ences. 

VIII.  Transit   of   Tehauntepec   Isth- 
mus. 
IX.  Ratification. 


1861. 
EXTRADITION  TREATY.2 

Concluded  December  11,  1861;  ratification  advised  by  the  Senate 
with  amendment  April  9,  1862;  ratified  by  the  President  April 
11,  1862;  ratifications  exchanged  May  20,  1862;  proclaimed 
June  20,  1862.  (Treaties  and  Conventions,  1889,  p.  698.) 

U.  S.  Treaties  1904,  p.  531;    12  Stats,  at  Large,  679. 
By  notification  from  the  Mexican  government  the  treaty  w* 
abrogated  January  24,  1899. 


14,180;  Atocha  v.  United  States,  8 
Ct.'  of  Cl.  427;  Crystal  Springs  Land 
and  Water  Co.  v.  Los  Angeles,  76 
Fed.  148;  In  re  Eodreguez,  81  Fed. 
337;  Hooker  v.  Los  Angeles,  188  U. 
S.  314,  23  Sup.  Ct.  Rep.  395,  47  L. 
ed.  487;  Sena  v.  United  States,  189 
U.  S.  233,  23  Sup.  Ct.  Rep.  596,  47 
L.  ed.  787. 
1  See  In  re  Rodriguez,  81  Fed.  337. 


2  See  Benson  v»  McMahon,  127 
S.  457,  8  Sup.  Ct.  Rep.  1240,  32 
ed.  234;   Ornelas  v.  Ruiz,  161  U. 
502,  16  Sup.  Ct.  Rep.  689,  40  L.  e( 
787;  Ex  parte  Coy,  32  Fed.  911; 
re    Benson,    34   Fed.    649;    Ex   parl 
McCabe,  46   Fed.   363,   12   L.   R. 
589;  In  re  Rowe,  77  Fed.  161,  23 
C.  A.  103. 


APPENDIX   II.  711 

1868. 
CLAIMS  CONVENTION.1 

Concluded  July  4,  1868;  ratification  advised  by  the  Senate  July 
25,  1868;  ratified  ~by  the  President  January  25,  1869;  ratifica- 
tions exchanged  February  1,  1869;  proclaimed  February  1, 
1869.  (Treaties  and  Conventions,  1889,  p.  700.) 

U.  S.  Treaties  1904,  p.  531 ;  15  Stats,  at  Large,  679. 
Under  this  convention  of  seven  articles  a  joint  commission  was 
appointed  to  consider  mutual  claims,  consisting  of  one  commis- 
sioner for  each  country,  who  together  chose  an  umpire.  The  first 
meeting  took  place  August  10,  1869,  considered  to  have  been  held 
July  31,  1869.  The  final  session  was  January  31,  1876.  The 
awards  rendered  were:  In  favor  of  citizens  of  the  United  States. 
$4,125,622.20 ;  and  in  favor  of  citizens  of  Mexico,  $150,498.41. 

1868. 
NATURALIZATION   CONVENTION.2 

Concluded  July  .10,  1868;  ratification  advised  by  the  Senate  July 
25,  1868;  ratified  by  the  President  January  27,  1869;  ratifica- 
tions exchanged  February  1,  1869;  proclaimed  February  1, 
1869.  (Treaties  and  Conventions,  1889,  p.  704.) 

U.  S.  Treaties  1904,  p.  532;    15  Stats,  at  Large,  687. 
This  convention  of  six  articles  was  terminated  February  11,  1882, 
upon  notification  given  by  Mexico. 

1871. 
.CLAIMS  CONVENTION. 

Concluded  April  19, 1871;  ratification  advised  by  the  Senate  Decem- 
ber 11,  1871;  ratified  by  the  President  December  15,  1871; 
ratifications  exchanged  February  8,  1872;  proclaimed  February 
8,  1872.  (Treaties  and  Conventions,  1889,  p.  705.) 

U.  S.  Treaties  1904,  p.  532;    17  Stats,  at  Large,  861. 

1  See    Frelinghuysen   v.   Key,     110  ton  v.  Elaine,  139  U.  S.  306,  11  Sup. 

U.  S.  63,  3  Sup.  Ct.  Kep.  462,  28  L.  Ct.  Eep.  607,  35  L.  ed.  183;  United 

<ed.  71;  Ailing  v.  United  States,  114  States  ex  rel.  Key  v.  Frelinghuy- 

•U.  S.  562,  5  Sup.  Ct.  Eep.  1080,  29  L.  sen,  2  Maekey  (D.  C.),  299. 

ed.  272;  United  States  ex  rel.  Boyn-  -  See  In  re  Rodriguez,  81  Fed.  337. 


712  APPENDIX   II. 

By  this  convention  of  two  articles  the  duration  of  the  claims  com- 
mission organized  under  the  convention  of  1868  was  extended  one 
year. 

1872. 
CLAIMS  CONVENTION. 

Concluded  November  27,  1872;  ratification  advised  by  the  Senate 
with  amendment  March  9,  1873;  ratified  by  the  President 
March  10,  1873;  ratifications  exchanged  July  17,  1873;  pro- 
claimed July  24,  1873.  (Treaties  and  Conventions,  1889,  p. 
706.) 

IT.  S.  Treaties  1904,  p.  532;    18  Stats,  at  Large,  Treaties,  76. 

The  time  for  the  completion  of  the  labors  of  the  claims  commis- 
sion under  the  convention  of  1868  was  further  extended  by  this 
convention  for  another  year. 

1874. 
CLAIMS  CONVENTION. 

Concluded  November  20,  1874;  ratification  advised  by  the  Senate 
January  20,  1875;  ratified  by  the  President  January  22,  1875; 
ratifications  exchanged  January  28,  1875 ;  proclaimed  January 
28,  1875.  (Treaties  and  Conventions,  1889,  p.  707.) 

U.  S.  Treaties  1904,  p.  532;    18  Stats,  at  Large,  Treaties,  149. 

The  claims  commission  under  the  convention  of  1868  was  still 
further  extended  by  this  convention  for  another  year. 


1876. 
CLAIMS  CONVENTION. 

Concluded  April  29,  1876;  ratification  advised  by  the  Senate  May 
24,  1876;  ratified  by  the  President  June  27,  1876;  ratifica- 
tions exchanged  June  29,  1876 ;  proclaimed  June  29,  1876. 
(Treaties  and  Conventions,  1889,  p.  709.) 

U.  S.  Treaties  1904,  p.  533;    19  Stats,  at  Large,  Treaties,  86. 


APPENDIX  II.  713 

The  functions  of  the  umpire  under  the  convention  of  1868  were 
extended  by  this  convention  of  three  articles  until  November  20, 
1876,  and  provision  made  for  the  payment  of  the  awards. 

1882. 
BOUNDARY  CONVENTION. 

Concluded  July  29,  1882;  ratification  advised  by  the  Senate  August 
8,  1882;  ratified  ~by  the  President  January  29,  1883;  ratifica- 
tions exchanged  March  3,  1883;  proclaimed  March  5,  1883. 
(Treaties  and  Conventions,  1889,  p.  711.) 

U.  S.  Treaties  1904,  p.  533;    22  Stats,  at  Large,  986. 

(This  convention,  although  temporary  in  its  character,  is  re- 
ferred to  because  Article  IX  provides  for  the  punishment  of  per- 
sons destroying  or  defacing  the  monuments  marking  the  boundary. ) 

AKTICLES. 

I.  Preliminary  reconnaissance.  VI.  Expenses. 

II.  International      Boundary      Com-        VII.  Payment  for  monuments. 

mission  authorized.  VIII.  Duration  of  commission. 

III.  Powers   of  commission.  IX.  Protection      of      monuments; 
IV.  Boundary    monuments.  ratification. 

V.  Reports    of    commission. 

1883. 
COMMERCIAL  RECIPROCITY  CONVENTION. 

Concluded  January  20,  1883;  ratification  advised  ~by  the  Senate 
with  amendments  March  11,  1884;  ratified  ~by  the  President 
May  20,  1884;  ratifications  exchanged  May  20,  1884;  pro- 
claimed June  2,  1884.  (Treaties  and  Conventions,  1889,  p. 
714.) 

U.  S.  Treaties  1904,  p.  536;    24  Stats,  at  Large,  975. 

This  convention  of  ten  articles  made  mutual  agreements  for  the 
importation  of  certain  products  of  each  country  into  the  other  free 
of  duty. 

Owing  to  the  failure  of  legislation  to  carry  the  convention  into 
effect  it  ceased  to  be  operative  May  20,  1887. 


714  APPENDIX    II. 

1884. 
BOUNDARY  CONVENTION,  Rio  GRANDE  AND  Rio  COLORADO. 

Concluded  November  12,  1884;  ratification  advised  ~by  the  Senate 
March  18,  1885;  modifications  consented  to  by  the  Senate  June 
23,  1886;  ratified  by  the  President  July  10,  1886;  ratifications 
exchanged  September  13,  1886;  proclaimed  September  14, 
1886.  (Treaties  and  Conventions,  1889,  p.  721.) 

U.  S.  Treaties  1904,  p.  536;    24  Stats,  at  Large,  1011. 

AKTICLES. 

I.  Boundaries   in   rivers   named.  IV.  Bridges. 

II.  Changes.  V.  Eiparian  rights. 

III.  Artificial  changes.  VI.  Eatification. 

1885. 
RECIPROCITY  CONVENTION. 

Concluded  February  25,  1885 ;  ratification  advised  by  the  Senate 
March  20,  1885;  ratified  by  the  President  November  12,  1885; 
ratifications  exchanged  November  27,  1885 ;  proclaimed  May  4, 
1886.  (Treaties  and  Conventions,  1889,  p.  722.) 

U.  S.  Treaties  1904,  p.  538;    25  Stats,  at  Large,  1370. 

The  time  for  the  enactment  of  legislation  to  carry  into  effect  the 
convention  of  1883  was  extended  by  this  convention  to  May  20, 

1886. 

1885. 
BOUNDARY  CONVENTION. 

Concluded  December  5,  1885 ;  ratification  advised  by  the  Senate 
with  amendment  June  21,  1886 ;  ratified  by  the  President 
June  23,  1887 ;  ratifications  exchanged  June  27,  1887 ;  pro- 
claimed June  28,  1887.  (Treaties  and  Conventions,  1889,  p. 
1189.) 

I).  S.  Treaties  1904,  p.  538;    25  Stats,  at  Large,  1390. 
The  time  for  completing  the  work  of  the  Boundary  Commission 
authorized  under  the  convention  of  1882  was  extended  eighteen 
months  by  this  convention. 


APPENDIX  II.  715 

1886. 
RECIPROCITY  CONVENTION. 

Concluded  May  14,  1886 ;  ratification  advised  by  the  Senate  Janu- 
ary 7,  1887 ;  ratified  by  the  President  January  24,  1887;  ratifi- 
cations exchanged  January  29,  1887 ;  proclaimed  February  1, 
1887.  (Treaties  and  Conventions,  1889,  p.  1190.) 

IT.  S.  Treaties  1904,  p.  539;    24  Stats,  at  Large,  1018. 

The  time  for  the  enactment  of  legislation  to  carry  the  convention 
of  1883  into  effect  was  further  extended  by  this  convention  to  May 
20,  1887. 

1889. 
BOUNDARY  CONVENTION. 

Concluded  February  18,  1889;  ratification  advised  by  the  Senate 
March  26, 1889;  ratified  by  the  President  April  30, 1889;  ratifi- 
cations exchanged  October  12,  1889;  proclaimed  October  14, 
1889. 

U.  S.  Treaties  1904,  p.  539;    26  Stats,  at  Large,  1493. 

Owing  to  the  failure  to  appoint  the  commission  authorized  by 
the  convention  of  1882,  within  the  time  specified,  as  extended 
by  the  convention  of  1885,  it  ceased  to  have  effect.  By  this  con- 
vention the  provisions  of  the  convention  of  1882  were  revived  for 
a  period  of  five  years  from  the  date  of  the  exchange  of  ratifications. 

1889. 
BOUNDARY  CONVENTION. 

Concluded  March  1, 1889;  ratification  advised  by  the  Senate  May  7, 
1890;  ratified  by  the  President  December  6,  1890;  ratifications 
exchanged  December  24,  1890;  proclaimed  December  26,  1890. 

U.  S.  Treaties  1904,  p.  539;    26  Stats,  at  Large,  1512. 


716  APPENDIX  II. 

AETICLES. 

I.  International  Boundary    Com-  banks  of  Colorado  and  Bio 

mission  authorized.  Grande. 

II.  Composition.  VI.  Examinations. 

III.  Meetings  of  Commission.  VII.  Jurisdiction. 

IV.  Duties.  VIII.  Decisions. 

V.  Investigation     of     works     on  IX.  Ratification. 


1894. 
BOUNDARY  CONVENTION. 

Concluded  August  24,  1894;  ratification  advised  ~by  the  Senate 
August  27,  1894;  ratified  by  the  President  September  1,  1894: 
ratifications  exchanged  October  11,  1894;  proclaimed  October 
18,  1894. 

U.  S.  Treaties  1904,  p.  542;    28  Stats,  at  Large,  841. 
The  period  for  the  completion  of  the  work  of  the  Boundary  Com- 
mission under  convention  of  1889  was  extended  by  this  conven- 
tion two  years  from  October  11,  1894. 

1895. 
BOUNDARY  CONVENTION. 

Concluded  October  1,  1895;  ratification  advised  by  the  Senate 
December  17,  1895;  ratified  by  the  President  December  20, 
1895;  ratifications  exchanged  December  21,  1895;  proclaimed 
December  21,  1895. 

U.  S.  Treaties  1904,  p.  542;    29  Stats,  at  Large,  841. 
The  duration  of  the  convention  of  1889  was  extended  one  year 
by  this  convention. 

1896. 
BOUNDARY  CONVENTION. 

Concluded  November  6,  1896 ;  ratification  advised  by  the  Senate 
December  10,  1896;  ratified  by  the  President  December  15, 
1896 ;  ratifications  exchanged  December  23,  1896 ;  proclaimed 
December  23,  1896. 

U.  S.  Treaties  1904,  p.  542;    29  Stats,  at  Large,  857. 
The  convention  of  1889  was  further  extended  to  December  24 
1897,  by  this  convention. 


APPENDIX  II.  717 

1897. 
BOUNDARY  CONVENTION. 

Concluded  October  29,  1897  ;  ratification  advised  by  the  Senate 
December  16,  1897  ;  ratified  by  the  President  December  20, 
1897 ;  ratifications  exchanged  December  21,  1897  ;  proclaimed 
December  21,  1897. 

U.  S.  Treaties  1904,  p.  543;    30  Stats,  at  Large,  1625. 
This  convention  further  extended  the  duration  of  the  convention 
of  1889  to  December  24,  1898. 

1898. 
BOUNDARY  CONVENTION. 

Concluded  December  2,  1898;  ratification  advised  by  the  Senate 
December  8,  1898;  ratified  by  the  President  December  12, 
1898;  ratifications  exchanged  February  2,  1899;  proclaimed 
February  3,  1899. 

U.  S.  Treaties  1904,  p.  543;   30  Stats,  at  Large,  1744. 
The  convention  of  1889  was  again  extended  one  year  by  this 
convention. 

1899. 
EXTRADITION  TREATY. 

Concluded  February  22, 1899;  ratification  advised  by  Senate  March 
2,  1899;  ratified  by  President  March  8,  1899;  ratifications  ex- 
changed April  22,  1899;  proclaimed  April  24,  1899. 
IT.  S.  Treaties  1904,  p.  543;    31  Stats,  at  Large,  1818. 

AKTICLES. 

I.  Delivery  of  accused.  XII.  ,Prior  offenses. 

II.  Extraditable  offenses.  XIII.  Trial;      punishment;       third 

III.  Nonextradition.  country. 

IV.  Nondelivery  of  citizens.  XIV.  Expenses. 

V.  Deferring  extradition.  XV.  Property  found  on  fugitive. 

VI.  Persons  claimed  by  other  coun-  XVI.  Transit     over     territory     of 

tries.  third  country. 

VII.  Political  offenses.  XVII.  Crimes    by    citizens    of    one 

VIII.  Procedure.  against     other     contracting 

IX.  Frontier  States.  power. 

X.  Provisional  detention.  XVIII.  Effect. 

XI.  Officers    surrendering    govern-  XIX.  Duration;    ratification, 
ment. 


718  APPENDIX  II. 

1899. 
BOUNDARY  CONVENTION. 

Concluded  December  22,  1899;  ratification  advised  by  Senate  Feb- 
ruary 8,  1900;  ratified  by  President  February  14,  1900;  ratifi- 
cations exchanged  May  5,  1900;  proclaimed  May  7,  1900. 

IT.  S.  Treaties  1904,  p.  550. 

This  convention  further  extended  the  duration  of  the  convention 
of  March  1,  1889,  for  one  year. 

1900. 
WATER  BOUNDARY  CONVENTION. 

Concluded  November  21,  1900;  ratification  advised  by  Senate  De- 
cember 15,  1900;  ratified  by  President  December  24,  1900; 
ratifications  exchanged  December  24,  1900;  proclaimed  Decem- 
ber 24,  1900. 

U.  S.  Treaties  1904,  p.  550;    31  Stats,  at  Large,  1936. 

1902. 

SUPPLEMENTARY  EXTRADITION  CONVENTION. 

Concluded  June  25,  1902;  ratification  advised  by  Senate  March  11, 
1903;  ratified  by  President  March  18,  1903;  ratifications  ex- 
changed March  28,  1903;  proclaimed  April  3,  1903. 
U.  S.  Treaties  1904,  p.  551. 

ARTICLE. 
Extraditable  offense;  bribery. 

1906. 

CONVENTION  BETWEEN  THE  UNITED  STATES  AND  MEXICO  PROVIDING 
FOR  THE  EQUITABLE  DISTRIBUTION  OF  THE  WATERS  OF 
Rio  GRANDE  FOR  IRRIGATION  PURPOSES. 

Signed  at  Washington  May  21,  1906;  ratification  advised  by  tin 
Senate  June  26,  1906 ;  ratified  by  the  President  December  2t 
1906;  ratified  by  Mexico  January  5,  1907 ;  ratifications  ex- 
changed at  Washington,  January  16,  1907 ;  proclaimed  Janu- 
ary 16,  1907.  . 
Treaties  and  Proclamations,  2953;    34  Stats,  at  Large,  pt.  3,  p.  2953. 


APPENDIX   II.  719 

MOROCCO. 

1787. 
TREATY  OF  PEACE  AND  FRIENDSHIP. 

Concluded  January,  1787;  ratified  by  the  Continental  Congress 
July  18,  1787.  (Treaties  and  Conventions,  1889,  p.  724.) 

U.  S.  Treaties  1904,  p.  553;  8  Stats,  at  Large,  100. 

This  treaty  of  twenty-six  articles,  negotiated  by  Thos.  Barclay 
and  signed  by  John  Adams  and  Thorn.  Jefferson,  was  superseded 
by  the  following  Treaty  of  1836. 

1836. 
TREATY  OF  PEACE  AND  FRIENDSHIP. 

Concluded  September  16,  1836 ;  ratification  advised  by  the  Senate 
January  17,  1837  ;  ratified  by  the  President  January  28,  1837  ; 
proclaimed  January  30,  1837.  (Treaties  and  Conventions, 

1889,  p.  729.) 

U.  S.  Treaties  1904,  p.  553;    8  Stats,  at  Large,  484. 

ARTICLES. 

I.  Emperor's  consent.  XVI.  Exchange  of  prisoners. 

II.  No  service  with  an  enemy.  XVII.  Trade  privileges. 

III.  Captures.  XVIII.  Examination  of  exports. 

IV.  Ships'  passports.  XIX.  No  detention,  etc.,  of  vessels. 

V.  Eight  of  search.  XX.  Consul  to  decide  disputes  in 

VI.  Eelease  of  captives.  Morocco. 

VII.  Supplies  to  vessels.  XXI.  Trials  of  homicides  and  as- 

VIII.  Eepairs  to  vessels.  saults. 

IX.  Shipwrecks.  XXII.  Estates    of    deceased  Ameri- 

X.  Protection  of  warships.  cans. 

XI.  Immunities  of  ports.  XXIII.  Consular  privileges. 

XII.  Freedom  of  warships.  XXIV.  Agreement  in  case  of  differ- 

XIII.  Salutes.  ences;     most    favored    na- 

XIV.  Most     favored     nation     com-  tion  privileges. 

merce.  XXV.  Duration. 

XV.  Privileges  to  merchants. 


720 


APPENDIX   II. 


1865. 
CONVENTION  AS  TO  CAPE  SPARTEL  LIGHTHOUSE. 

Concluded  between  the  United  States,  Austria,  Belgium,  France, 
Great  Britain,  Italy,  the  Netherlands,  Portugal,  Spain,  and 
Sweden  and  Norway,  and  Morocco,  May  31,  1865 ;  ratification 
advised  by  the  Senate  July  5,  1866 ;  ratified  by  the  President 
July  14,  1866;  ratifications  exchanged  February  14,  1867;  pro- 
claimed March  12,  1867.  (Treaties  and  Conventions,  1889,  p. 
734) 

IT.  S.  Treaties  1904,  p.  558;    14  Stats,  at  Large,  679. 
AETICLES. 


I.  Administration     of     the     light- 
house. 

II.  Expense  of  maintenance. 
III.  Protection. 


IV.  Management. 

V.  Duration. 
VI.  Regulations. 
VII.  Ratification. 


1880. 

CONVENTION  AS  TO  PROTECTION. 

Concluded  between  the  United  States,  Germany,  Austria,  Belgium, 
Denmark,  Spain,  France,  Great  Britain,  Italy,  the  Netherlands, 
Portugal  and  Sweden  and  Norway  and  Morocco,  July  3,  1880; 
ratification  advised  by  the  Senate  May  5,  1881;  ratified  ~by  the 
President  May  10,  1881;  proclaimed  December  21,  1881. 
(Treaties  and  Conventions,  1889,  p.  737.) 

U.  S.  Treaties  1904,  p.  561;    22  Stats,  at  Large,  817. 
AETICLES. 


I.  Conditions   of   protection. 
II.  Employees  of  legations. 
III.  Consular  employees. 
IV.  Diplomatic  rights;  suits;  pros- 
ecutions. 

V.  Native  consular  agents. 
VI.  Extent  of  protection. 
VII.  Names  to  be  furnished  by  le- 
gations. 

VIII.  Names  to  be  furnished  by  con- 
sulates. 
IX.  Classes  not  protected. 


X.  Brokers. 
XT.  Property  rights. 
XII.  Agricultural  tax. 

XIII.  Gate  tax. 

XIV.  Mediation  of  native  employ 

ees.    . 

XV.  Naturalization. 
XVI.  Limitation  of  protection. 
XVII.  Most    favored   nation    treat 

ment. 
XVIII.  Ratification. 


APPENDIX  II.  721 

1899. 

AGREEMENT  BY  EXCHANGE  OF  NOTES  WITH  GREAT  BRITAIN  FOR  THE 
PROTECTION  OF  TRADEMARKS  IN  MOROCCO- 

Concluded  December  6,  1899. 
U.  S.  Treaties  1904,  p.  567. 

1901. 

AGREEMENT   BY   EXCHANGE   OF   NOTES  WITH   GERMANY  FOR   THE 
RECIPROCAL  PROTECTION  OF  TRADEMARKS  IN  MOROCCO. 

Concluded  September  28 — October  8,  1901. 
U.  S.  Treaties  1904,  p.  569. 


MUSCAT. 

1833. 
TREATY  OF  AMITY  AND  COMMERCE.- 

Concluded  September  21,  1833;  ratification  advised  by  the  Senate 
June  23,  1834;  ratified   by   the  President;  ratifications   ex- 
changed   September    30,    1835;    proclaimed    June    24,    1837. 
F(  Treaties  and  Conventions,  1889,  p.  744.) 
U.  S.  Treaties  1904,  p.  570;    8  Stats,  at  Large,  458. 
This  treaty  was  accepted  by  the  Sultan  of  Zanzibar  after  the 
separation  of  that  state  from  Muscat,  and  its  Article  III  is  amended 
by  the  treaty  of  June  5,   1903,  between  the  United  States  and 
Great  Britain,  acting  in  the  name  of  the  Sultan  of  Zanzibar. 

ARTICLES. 

I.  Peace.  VII.  Captures  by  pirates. 

II.  Freedom  of  trade.  VIII.  Shipping  charges  in  the  United 

III.  Duties    payable    by    American  States. 

ships.  IX.  Consular  powers  and  immuni- 

IV.  Duties,  licenses  and  charges.  ties. 

V.  Shipwrecks.  Ratification. 
VI.  Exemption  from  tax  on  trade. 
Treaties — 46 


722  APPENDIX   II. 


NASSAU. 
(See  PRUSSIA.) 

1846. 
CONVENTION  ABOLISHING  DROIT  D'AUBAINE  AND  EMIGRATION  TAXES. 

Concluded  May  27,  1846 ;  ratification  advised  by  the  Senate  July 
21,  1846;  ratified  by  the  President  July  23,  1846 ;  ratifications 
exchanged  October  13,  1846 ;  proclaimed  January  26,  1847. 
(Treaties  and  Conventions,  1889,  p.  747.) 

U.  S.  Treaties  1904,  p.  573;    9  Stats,  at  Large,  Treaties,  48. 
Nassau  was  merged  with  Prussia  by  conquest  1866. 


NETHERLANDS. 

1782. 
TREATY  OF  PEACE  AND  COMMERCE. 

Concluded  October  8,  1782;  ratified  by  the  Continental  Congress 
January  22, 1783.     (Treaties  and  Conventions,  1889,  p.  749.) 

U.  S.  Treaties  1904,  p.  574;    8  Stats,  at  Large,  32. 

This  treaty  of  twenty-nine  articles  was  abrogated  by  the  over- 
throw of  the  Netherlands  government  in  1795. 

1782. 
CONVENTION  RELATIVE  TO  RECAPTURED  VESSELS. 

Concluded  October  8,  1782;  ratified  by  the  Continental  Congress 
January  23, 1783.     (Treaties  and  Conventions,  1889,  p.  759.) 

U.  S.  Treaties  1904,  p.  574;    8  Stats,  at  Large,  50. 

This  convention  of  six  articles  was  abrogated  by  the  overthrow 
of  the  Netherlands  government  in  1795. 


APPENDIX   II.  723 


1839. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  January  19,  1839;  ratification  advised  by  the  Senate 
January  31,  183.9;  ratified  by  the  President  February  1,  1839 ; 
ratifications  exchanged  May  23,  1839;  proclaimed  May  24, 
1839.  (Treaties  and  Conventions,  1889,  p.  761.) 

U.  S.  Treaties  1904,  p.  574;    8  Stats,  at  Large,  524. 

AETICLES. 

I.  Import  and  export  duties,  draw-  IV.  Nationality  of  ships. 

backs,  etc.  V.  Shipwrecks. 

II.  Shipping  charges.  VI.  Duration. 

HF.  Consular  officers.  VII.  Ratification. 


1852. 
CONVENTION  OF   COMMERCE  AND  NAVIGATION. 

Concluded  August  26,  1852;  ratification  advised  by  the  Senate  Feb- 
ruary 17,  1853;  ratified  by  the  President  February  21,  1853 ; 
ratifications  exchanged  February  25,  1853;  proclaimed  Feb- 
ruary 26,  1853.  (Treaties  and  Conventions,  1889,  p.  763.) 

U.  S.  Treaties  1904,  p.  576;    10  Stats,  at  Large,  Treaties,  66. 

AETICLES. 

I.  Import  and  export  duties,  boun-  IV.  Coasting  trade  and  fisheries. 

ties,  drawbacks,  etc.  V.  Discriminations  in  favor  of  di- 
ll. Trade  with  colonies  of  the  Neth-  rect  trade. 

erlands.  VI.  Duration  and  extent. 

III.  Shipping  dues.  VII.  Ratification. 

1855. 
CONSULAR  CONVENTION. 

Concluded  January  22.  1855;  ratification  advised  by  the  Senate 
March  3,  1855 ;  ratified  btj  the  President  March  5,  1855 ;  rati- 
fications exchanged  May  25,  1855 ;  proclaimed  May  26.  1855. 
(Treaties  and  Conventions,  1889,  p.  765.) 

U.  S.  Treaties  1904,  p.  578. 


724  APPENDIX  II. 

By  this  convention  consuls  were  received  into  the  colonies  of  the 
Netherlands.  It  was  abrogated  August  20,  1879,  being  superseded 
by  the  convention  of  1878. 

1878. 
CONSULAR  CONVENTION. 

Concluded  May  23,  1878;  ratification  advised  by  the  Senate  June 
6,  1878;  ratified  by  the  President  June  21,  1878;  time  for  ex- 
change of  ratifications  extended  by  the  Senate  January  29, 
1879,  and  May  8,  1879;  ratifications  exchanged  July  31,  1879; 
proclaimed  August  1,  1879.  (Treaties  and  Conventions,  1889, 
p.  769.) 

U.  S.  Treaties  1904,  p.  579;    21  Stats,  at  Large,  662. 

AETICLES. 

I.  Consular  officers  authorized.  IX.  Communication  with    authori- 

II.  Commissions  and   exequaturs.  ties. 

III.  Exemptions  and  privileges.  X.  Eights  of  consular  officers. 

IV.  Testimony    by    consular    offi-  XI.  Settlement    of    shipping    dis- 

cers.  putes. 

V.  Arms  and  flags.  XII.  Deserters  from  ships. 

VI.  Inviolability  of  archives.  XIII.  Damages  at  sea. 

VII.  Acting  consular  officers.  XIV.  Shipwrecks  and  salvage. 

VIII.  Vice-consular      officers       and  XV.  Notification  of  deaths, 

agents.  XVI.  Duration. 

XVII.  Eatification. 


1880. 

EXTRADITION  CONVENTION. 

Concluded  May  22,  1880;  ratification  advised  by  the  Senate  June 
15,  1880;  ratified  by  the  President  June  25,  1880;  ratifications 
exchanged  June  29, 1880;  proclaimed  July  30, 1880.  (Treaties 
and  Conventions,  1889,  p.  775.) 

U.  S.  Treaties  1904,  p.  584;    21  Stats,  at  Large,  769. 

This  convention  of  twelve  articles  was  superseded  by  the  Conven- 
tion of  1887. 


APPENDIX  II.  725 

1883. 
TRADEMARKS. 

EXCHANGE  OF  NOTES  BETWEEN  THE  NETHERLANDS  LEGATION  AND 
THE  DEPARTMENT  OF  STATE. 

Dated  February  10,  1883,  and  February  16,  1883. 
U.  S.  Treaties  1904,  p.  584. 

1887. 
EXTRADITION   CONVENTION. 

Concluded  June  2,  1887  ;  ratification  advised  by  the  Senate  March 
26, 1889;  ratified  by  the  President  April  17,  1889;  ratifications 
exchanged  May  31, 1889;  proclaimed  June  21, 1889. 

U.  S.  Treaties  1904,  p.  586;   26  Stats,  at  Large,  1481. 

AETICLES. 

I.  Delivery  of  accused.  VIIL  Nondelivery  of  citizens. 

II.  Extraditable  crimes.  IX.  Expenses. 

III.  Political  offenses.  X.  Articles  found  on  fugitives. 

IV.  Eestrictions  on  trials.  XI.  Procedure. 

V.  Exemptions.  XII.  Provisional   arrest  and  deten- 

VI.  Persons  under  arrest  in  country  tion. 

where  found.  XIII.  Duration;    ratification. 

VII.  Persons     claimed    by  two     or 
more  powers. 


EXTRADITION  WITH  THE  NETHERLANDS. 

1904. 
EXTRADITION. 

Concluded  January  18,  1904;  ratification  advised  by  Senate  Janu- 
ary 27,  1904;  ratified  by  the  President  May  26,  1904;  ratifica- 
tions exchanged  May  28,  1904;  proclaimed  May  31,  1904. 

U.  S.  Treaties  1904,  p.  950;    33  Stats,  at  Large,  2257. 


726  APPENDIX   II. 

AETICLES. 

I.  Convention  applicable  to  posses-  IV.  Amendatory    of    the    treaty    of 

sions  and  colonies.  June  2,  1887. 

II.  Extraditable  crimes.  V.  Provisional  arrest  and  detention. 

III.  Procedure.  VI.  Duration;    ratification. 


NICARAGUA. 
1867. 

TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION,  AND  AS  TO 
ISTHMIAN  TRANSIT. 

Concluded  June  21,  1867  ;  ratification  advised  by  the  Senate  Janu- 
ary 20,  1868;  ratified  by  the  President  February  7,  1868;  ratifi- 
cations exchanged  June  20,  1868;  proclaimed  August  13,  1868. 
(Treaties  and  Conventions,  1889,  p.  779.) 

U.  S.  Treaties  1904,  p.  591;    15  Stats,  at  Large,  549. 

This  treaty,  containing  twenty-one  articles,  denounced  by  Nica- 
ragua to  take  effect  October  24,  1902. 

1870. 
EXTRADITION  CONVENTION. 

Concluded  June  25,  1870;  ratification  advised  by  the  Senate  with 
amendments  March  31,  1871;  ratified  by  the  President  April  11. 
1871;  ratifications  exchanged  June  24,  1871;  proclaimed  Sep- 
tember 19, 1871.  (Treaties  and  Conventions,  1889,  p.  787.) 

U.  S.  Treaties  1904,  p.  591;    17  Stats,  at  Large,  815. 

This  treaty,  containing  seven  articles,  denounced  by  Nicaraguj 
to  take  effect  April  24,  1902. 

1900. 

PROTOCOL  WITH  NICARAGUA  FOR  THE  CONSTRUCTION  OF  AN  INTEI 

OCEANIC  CANAL. 

Concluded  December  1, 1900. 
U.  S.  Treaties  1904,  p.  591. 


APPENDIX  II.  727 

NORTH  GERMAN  UNION. 

(See,  also,  GERMAN  EMPIRE  AND  PRUSSIA.) 

1868. 
NATURALIZATION  CONVENTION. 

Concluded  February  22,  1868;  ratification  advised  by  the  Senate 
with  amendment  March  26,  1868;  ratified  by  the  President 
March  30,  1868;  ratifications  exchanged  May  9,  1868;  pro- 
claimed May  27,  1868.  (Treaties  and  Conventions,  1889,  p. 
790.) 

IT.  S.  Treaties  1904,  p.  592;    15  Stats,  at  Large,  615. 

ARTICLES. 

I.  Naturalization  recognized.  IV.  Renunciation  of  naturalization. 

II.  Punishment  for  offenses  prior  to  V.  Duration. 

naturalization.  VI.  Ratification. 
III.  Extradition. 


NORWAY. 

(See  SWEDEN  AND  NORWAY.) 

1893. 
EXTRADITION  CONVENTION. 

Concluded  June  7 ,  1893;  ratification  advised  by  the  Senate  Novem- 
ber 1,  1893 ;  ratified  by  the  President  November  3,  1893;  ratifi- 
cations exchanged  November  8,  1893;  proclaimed  November  9, 
1893. 

28  Stats,  at  Large,  1187. 

ARTICLES. 

I.  Delivery  of  accused.  VIII.  Prior  offenses. 

II.  Extraditable    crimes.  IX.  Property     seized     with     fugi- 

III.  Procedure.  tives. 

IV.  Provisional  detention.  X.  Persons     claimed      by      other 

V.  Nondelivery  of  citizens.  countries. 

VI.  Political  offenses.  XI.  Expenses. 

VII.  Limitations.  XII.  Duration;  ratification. 


728  APPENDIX   II. 

1904. 

TREATY  BETWEEN  THE  UNITED  STATES  AND  NORWAY  AMENDING  THE 
EXTRADITION  TREATY  OF  JUNE  7,  1893,  BETWEEN  THE  Two 
COUNTRIES. 

Signed  at  Washington  December  10,  1904;  ratification  advised  by 
the  Senate  January  6,  1905;  ratified  by  the  President  April 
1,  1905;  ratified  by  Sweden  and  Norway  February  3,  1905 ; 
ratifications  exchanged  at  Washington  April  4,  1905;  pro- 
claimed April  6,  1905. 
Treaties  and  Proclamations,  2865;  34  Stats,  at  Large,  pt.  3,  p.  2865. 

AETICLES. 

I.  Extradition   of   accessories   from       II.  Exchange  of  ratifications. 
Norway. 


OLDENBURG.1 

The  Duchy  of  Oldenburg  became  incorporated  in  the  North  Ger- 
man Union  1867.  On  March  10,  1847,  it  acceded  to  the  treaty  of 
commerce  and  navigation  concluded  with  the  Kingdom  of  Hanover 
June  10,  1846,  and  December  30,  1853,  it  acceded  to  the  extradition 
treaty  with  Prussia  and  other  Germanic  States  concluded  June  16, 
1852. 

U.  S.  Treaties  1904,  p.  598. 


ORANGE  FREE  STATE. 

1871. 
CONVENTION  OF  FRIENDSHIP,  COMMERCE,  AND  EXTRADITION. 

Concluded  December  22,  1871;  ratification  advised  by  the  Senatt 
April  3-4, 1872;  ratified  by  the  President  April  27,  1872;  ratifi- 
cations exchanged  August  18,  1873;  proclaimed  August  23, 
1873.  (Treaties  and  Conventions,  1889,  p.  794.) 

0.  S.  Treaties  1904,  p.  599;    18  Stats,  at  Large,  Treaties,  65. 

By  notification  from  the  government  of  the  Orange  Free  State 

this  convention  of  fourteen  articles  was  denounced  January  4,  1895. 

1  See    declaration    of  accession   of       of    June    16,    1852,    in    10    Stats,    at 
treaty  of  March  10,  1846,  in  9  Stats.       Large,  Treaties,  105. 
at  Large,  Treaties,  66,  and  of  treaty 


APPENDIX  II.  729 

1896. 
EXTRADITION  TREATY. 

Concluded  October  28,  1896 ;  ratified  ~by  the  Senate  January  28, 
1897 ;  ratified  by  the  President  February  21,  1899;  ratifications 
exchanged  April  20,  1899;  proclaimed  April  21,  1899. 

U.  S.  Treaties  1904,  p.  599;    31  Stats,  at  Large,  1813. 

This  treaty,  containing  twelve  articles,  was  terminated  by  the 
conquest  of  the  Orange  Free  State  and  its  incorporation  into  the 
British  Empire. 


OTTOMAN  EMPIRE.1 

(TURKEY.) 

1830. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  May  7,  1830;  ratification  advised  and  time  for  exchange 

kof  ratifications  extended  by  the  Senate  February  1,  1831;  rati- 
fied by  the  President  February  2,  1831;  ratifications  exchanged 
October  5,  1831;  proclaimed  February  4,  1832.  (Treaties  and 
Conventions,  1889,  p.  798.) 

U.  S.  Treaties  1904,  p.  600;    8  Stats,  at  Large,  408. 

(The  text  printed  is  a  translation  from  the  original  treaty,  which 
was  in  the  Turkish  language.  Differences  of  opinion  as  to  the  true 
meaning  of  certain  portions  have  been  the  subject  of  diplomatic 
correspondence  without  reaching  an  accord.) 

AETICLES. 

I.  Trade  privileges.  V.  Use   of  United  States  flag. 

U.  Consular    officers.  VI.  War  vessels. 

III.  Treatment    of    United    States  VII.  Navigation  of  the  Black  Sea. 

merchants  and  vessels.  VIII.  Ships   not   to   be  impressed. 
IV.  Judicial  treatment  of  United  IX.  Shipwrecks. 

States  citizens.  Eatification. 

1  See  Dainese  v.  Hale,  91  U.  S.  13,  Dainese  v.  United  States,  15  Ct.  of 
23  L.  ed.  190,  1  McAr.  (D.  C.)  86;  Cl.  64. 


730  APPENDIX  n. 

1862. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  February  25,  1862;  ratification  advised  by  the  Senate 
April  9,  1862;  ratified  by  the  President  April  18,  1862;  ratifi- 
cations exchanged  June  5,  1862;  proclaimed  July  2,  1862. 
(Treaties  and  Conventions,  1889,  p.  800.) 

U.  S.  Treaties  1904,  p.  602;    12  Stats,  at  Large,  1213. 

This  treaty  of  twenty-three  articles  it  is  contended  has  been 
abrogated  upon  notice  given  by  the  Turkish  government,  to  date 
from  June  5,  1884.  (See  notes,  Treaties  and  Conventions,  1889,  p. 
1372.) 

1874. 
EXTRADITION  TREATY. 

Concluded  August  11,  1874;  ratification  advised  by  the  Senate  Jan- 
uary 20, 1875 ;  ratified  by  the  President  January  22,  1875;  rati- 
fications exchanged  April  22,  1875 ;  proclaimed  May  26,  1875. 
(Treaties  and  Conventions,  1889,  p.  821.) 

TJ.  S.  Treaties  1904,  p.  603;    19  Stats,  at  Large,  Treaties,  16. 

AETICLES. 

I.  Surrender  of  accused.  V.  Procedure. 

II.  Extraditable    crimes.  VI.  Expenses. 

III.  Political   offenses.  VII.  Nondelivery  of  citizens. 

IV.  Persons  under  arrest.  VIII.  Duration;    ratification. 


PANAMA. 

1903. 
CONVENTION  FOR  THE  CONSTRUCTION  OF  A  SHIP  CANAL. 


Concluded  November  18,  1903 ;  ratification  advised  by  the  Senate 
February  23, 1904;  ratified  by  the  President  February  25, 1904; 
ratifications  exchanged  February  26,  1904;  proclaimed  Febru- 
ary 26,  1904. 

II.  S.  Treaties  1904,  p.  609;    33  Stats,  at  Large,  pt.  2,  p.  2234. 


APPENDIX   II. 


731 


AETICLES. 

I.  Independence   of   Panama.  XV. 

II.  Canal  zone.  XVI. 

III.  Authority  in  canal  zone.  XVII. 

IV.  Subsidiary  rights.  XVIII. 

V.  Monopoly   for     construction,  XIX. 

etc.  XX. 

VI.  Private  property. 

VII.  Panama;    Colon;    harbors.  XXI. 

VIII.  Panama  Canal  Company  and 

railroad.  XXII. 
IX.  Ports  at  entrance  of  canal. 

X.  Taxes,   etc.  XXIII. 

XI.  Official  dispatches.  XXIV. 

XII.  Access   of   employees. 

XIII.  Importation  into    zone.  XXV. 

XIV.  Compensation.  XXVI. 


Joint    commission. 
Extradition. 
Ports   of   Panama. 
Neutrality    rules. 
Free  transport. 
Cancellation       of       existing 

treaties. 
Anterior   debts,    concessions, 

etc. 
Renunciation  of  rights  under 

concessionary  contracts. 
Protection    of    canal. 
Change  in  government,  laws, 

etc. 

Coaling   stations. 
Ratification. 


1904. 

TREATY   BETWEEN   THE    UNITED    STATES   AND   PANAMA   FOR   THE 
MUTUAL  EXTRADITION  OF  CRIMINALS. 

Signed  at  the  City  of  Panama  May  25,  1904;  ratification  advised 
by  the  Senate  January  6,  1905 ;  ratified  by  the  President  Jan- 
nary  20,  1905 ;  ratified  by  Panama  May  25,  1904;  ratifications 
exchanged  at  City  of  Panama  April  8,  1905;  proclaimed  May 
12,  1905. 

Treaties  and  Proclamations,  2851;  34  Stats,  at  Large,  pt.  3. 
ARTICLES. 


I.  Reciprocal  delivery  of  persons 

charged  with  crime. 
II.  Extraditable  crimes. 

III.  Requisitions. 

IV.  Application  for  provisional  ar- 

rest. 

V.  Neither  country  bound  to  de- 
liver up  its  own  citizens. 
VI.  No  surrender  for  political  of- 
fenses. 


VII.  No  delivery  if  trial  barred  by 

limitation. 
VIII.  Trial   to    be    only   for   offense 

for  which  extradited. 
IX.  Disposal     of     articles     seized 

with  person. 
X.  Persons     claimed     by     other 

countries. 
XI.  Expenses. 
XII.  Effect. 

Ratification. 


732 


APPENDIX   II. 


PARAGUAY. 

1859. 
CLAIMS  CONVENTION. 

Concluded  February  4, 1859;  ratification  advised  ~by  the  Senate  Feb- 
ruary 16,  1860;  ratified  by  the  President  March  7,  1860;  rati- 
fications exchanged  March  7, 1860;  proclaimed  March  12,  1860. 
(Treaties  and  Conventions,  1889,  p.  828.) 

U.  S.  Treaties  1904,  p.  617;    12  Stats,  at  Large,  1087. 

By  this  convention  the  claim  of  the  United  States  and  Paraguay 
Navigation  Company  against  Paraguay  was  submitted  to  a  com- 
mission of  two,  who  met  in  Washington  June  22,  I860,  and  ad- 
journed August  13,  1860,  deciding  against  the  claim. 


1859. 
TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  February  4,  1859 ;  ratification  advised  by  the  Senate 
February  27,  1860;  ratified  by  the  President  March  7,  1860; 
ratifications  exchanged  March  7,  1860;  proclaimed  March  12, 
1860.  (Treaties  and  Conventions,  1889,  p.  830.) 

U.  S.  Treaties  1904,  p.  617;   12  Stats,  at  Large,  1091. 


AETICLES. 


I.  Friendship. 

II.  Freedom  of  navigation. 
III.  Most  favored  nation  commer- 
cial  privileges. 
IV.  No  discriminations  of  imports 

and  exports. 
V.  Shipping  dues. 
VI.  Carrying  trade. 
VII.  Nationality  of  vessels. 
VIII.  Import    and    export    duties. 
IX.  Trade  privileges. 


X.  Property  rights;  estates  of  de- 
ceased persons. 
XI.  Exemption  from  military  sei 

vice,  etc. 

XH.  Diplomatic        and        consuJ 
privileges. 

XIII.  Agreement  in  case  of  war. 

XIV.  Protection    of     property; 

ligious  freedom,   etc. 
XV.  Duration. 
XVI.  Eatification. 


APPENDIX  II.  733 

PERSIA. 

1856. 
TREATY  OF  FRIENDSHIP  AND  COMMERCE.1 

Concluded  December  13,  1856;  ratification  advised  by  the  Senate 
March  10, 1857 ;  ratified  ~by  the  President  March  12,  1857 ;  rati- 
fications exchanged  June  13, 1857 ;  proclaimed  August  18, 1857. 
(Treaties  and  Conventions,  1889,  p.  836.) 

IT.  S.  Treaties  1904,  p.  622;    11  Stats,  at  Large,  709. 

ARTICLES. 

I.  Friendship.  V.  Trials  of  suits  and  offenses. 

II.  Diplomatic  privileges.  VI.  Effects  of  deceased  persons. 

IH.  Most    favored    nation    protec-  VII.  Diplomatic  and  consular  privi- 

tion.  leges. 

IV.  Import    and    export    duties.  VIII.  Duration;   ratification. 


PERU. 

1841. 

CLAIMS  CONVENTION. 

Concluded  March  17, 1841;  ratification  advised  by  the  Senate  Janu- 
ary 5, 1843;  ratified  by  the  President  January  12,  1843;  ratifi- 
cation exchanged  July  22, 1843;  proclaimed  February  21, 1844; 
modification  consented  to  and  time  for  exchange  of  ratifications 
extended  by  the  Senate  May  29,  1846;  ratifications  again  ex- 
changed October  31,  1846 ;  proclaimed  January  8,  1847. 
(Treaties  and  Conventions,  1889,  p.  850.) 

U.  S.  Treaties  1904,  p.  626;    8  Stats,  at  Large,  570. 

By  this  convention  Peru  agreed  to  pay  to  the  United  States  in 
settlement  of  claims  which  had  been  presented  by  citizens  of  the 
United  States  the  sum  of  $300,000.  The  claims  were  adjudicated 
by  the  attorney  general,  and  the  final  report  was  made  August  7, 
1847,  allowing  claims  amounting  to  $421,432.41. 

1  See  Powers  v.  Comly,  101  U.  S.  789,  25  L.  ed.  805. 


734  APPENDIX   II. 

1851. 
TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  July  26,  1851;  ratification  advised  by  the  Senate  June 
23,  1852;  ratified  by  the  President  July  16,  1852;  ratifications 
exchanged  July  16,  1852;  proclaimed  Jidy  19,  1852.  (Treaties 
and  Conventions,  1889,  p.  852.) 

U.  S.  Treaties  1904,  p.  626;    10  Stats,  at  Large,  Treaties,  28. 

This  treaty,  consisting  of  forty  articles,  was  terminated  Decem- 
ber 9,  1863,  upon  notice  given  by  Peru. 

1856. 

CONVENTION  DECLARING  THE  PRINCIPLES  OF  THE  RIGHTS  OF 
NEUTRALS  AT  SEA. 

Concluded  July  22,  1856 ;  ratification  advised  by  the  Senate  March 
12,  1857 ;  ratified  by  the  President  October  2,  1857 ;  ratifica- 
tions exchanged  October  31,  1857 ;  proclaimed  November  2, 
1857.  (Treaties  and  Conventions,  1889,  p.  864.) 

U.  S.  Treaties  1904,  p.  626;    11  Stats,  at  Large,  695. 

ARTICLES. 

I.  Principles   of   neutral    property  III.  Extension    of    neutral    rights, 

rights.  TV.  Accession   of   other   countries. 

II.  Former    treaty     provisions     an-  V.  Duration;    ratification, 
nulled. 

1857. 

CONVENTION  INTERPRETING  ARTICLE  XII,  TREATY  OF  1851. 
(Whaling  ships.) 

Concluded  July  4,  1857 ;  ratification  advised  by  the  Senate  Apt 
30,  1858;  ratified  by  the  President  May  7,  1858;  ratificatic 
exchanged    October   13,  1858;   proclaimed    October    14,  185( 
(Treaties  and  Conventions,  1889,  p.  886.) 

U.  8.  Treaties  1904,  p.  628;    11  Stats,  at  Large,  725. 

By  this  convention  amendment  was  made  to  Article  XII  of  th< 
Treaty  of  1851  in  respect  to  the  supplies  to  whaling  ships.  Th< 
convention  terminated  December  9;  1863,  with  the  Treaty  of  1851 


APPENDIX   II.  735 

1862. 
CLAIMS  CONVENTION. 

Concluded  December  20,  1862;  ratification  advised  ~by  the  Senate 
February  18,  1863;  ratified  by  the  President  February  24, 
1863 ;  ratifications  exchanged  April  21,  1863;  proclaimed  May 
19,  1863.  (Treaties  and  Conventions,  1889,  p.  868.) 

U.  S.  Treaties  1904,  p.  628;    13  Stats,  at  Large,  635. 

The  claims  presented  against  Peru  by  the  United  States  for  the 
alleged  illegal  capture  of  the  vessels  "Lizzie  Thompson"  and 
*' Georgianna"  were  by  this  convention  referred  to  the  arbitration 
of  the  King  of  Belgium,  who  declined  to  act,  and  the  cases  were 
dropped. 

1863. 
CLAIMS  CONVENTION. 

Concluded  January  12,  1863;  ratification  advised  by  the  Senate 
with  amendment  February  18,  1863;  ratified  by  the  President 
February  24,  1863;  ratifications  exchanged  April  18,  1863; 
proclaimed  May  19,  1863.  (Treaties  and  Conventions,  1889. 
p.  870.) 

U.  S.  Treaties  1904,  p.  629;    13  Stats,  at  Large,  639. 

By  this  convention  of  ten  articles  a  commission  of  five  was  au- 
thorized, which  met  at  Lima  July  17,  1863,  and  completed  their 
duties  November  27,  1863.  The  awards  against  the  United  States 
were  $25,300,  and  against  Peru  $57,196.23. 

1868. 
CLAIMS  CONVENTION. 

Concluded  December  4,  1868;  ratification  advised  by  the  Senate 
April  15,  1869;  ratified  by  the  President  May  3,  1869;  ratifica- 
tions exchanged  June  4,  1869;  proclaimed  July  6,  1869. 
(Treaties  and  Conventions,  1889,  p.  872.) 

U.  S.  Treaties  1904,  p.  629;    16  Stats,  at  Large,  751. 

This  convention  provided  for  the  adjudication  of  mutual  claims 
by  two  commissioners,  who  each  selected  an  umpire.  The  com- 


736  APPENDIX   II. 

mission  met  at  Lima  September  4,  1869,  and  adjourned  February 
26,  1870.  The  awards  against  the  United  States  were  $57,040,  and 
against  Peru,  $194,417.62. 

1870. 
TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  September  6,  1870;  ratification  advised  by  the  Senate 
March  31,  1871;  ratified  by  the  President  April  11,  1871;  time 
for  exchange  of  ratifications  extended  June  5,  1873;  ratifica- 
tions exchanged  May  28,  1874;  proclaimed  July  27,  1874. 
(Treaties  and  Conventions,  1889,  p.  876.) 

U.  S.  Treaties  1904,  p.  629;    18  Stats,  at  Large,  Treaties,  35. 

This  treaty  of  thirty-eight  articles  terminated  on  notice  given  by 
Peru  March  31,  1886. 

1870.1 
EXTRADITION  TREATY. 

Concluded  September  12,  1870;  ratification  advised  by  the  Senate 
March  31,  1871;  ratified  by  the  President  April  11,  1871;  time 
for  exchange  of  ratifications  extended  June  5,  1873;  ratifica- 
tions exchanged  May  28,  1874;  proclaimed  July  27,  1874. 
(Treaties  and  Conventions,  1889,  p.  888.) 

U.  S.  Treaties  1904,  p.  629;    18  Stats,  at  Large,  Treaties,  35. 

This  treaty  of  ten  articles  terminated  March  31,  1886,  on  notice 
given  by  Peru. 

1887. 
TREATY  OF  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  August  31,  1887 ;  ratification  advised  by  the  Senat( 
with  amendment  May  10,  1888;  ratified  by  the  President  June 
6,  1888;  ratifications  exchanged  October  1,  1888;  proclaimed 
November  7,  1888.  (Treaties  and  Conventions,  1889,  p.  1191.) 

IT.  S.  Treaties  1904,  p.  630;    25  Stats,  at  Large,  1444. 

This  treaty,  containing  thirty-five  articles,  terminated  Novembei 
1,  1899,  by  notification  from  Peru,  October  8,  1898. 

*See    Ker    v.    Illinois,    119    U.    S.       421;   Ex  parte   Ker,   18  Fed.   167. 
436,  7  Sup.  Ct.  Rep.  225,  30  L.  ed. 


APPENDIX  II.  737 

1889. 
EXTRADITION  TREATY. 

Concluded  November  28,  1899;  ratified  by  the  Senate  February  8, 
1900;  ratified  by  the  President  November  23, 1900 ;  ratifications 
exchanged  January  23,  1901;  proclaimed  January  29,  1901. 
31  Stats,  at  Large,  1921. 

AKTICLES. 

I.  Delivery  of  accused.  VIII.  Extradition    deferred. 

II.  Extraditable  crimes.  IX.  Prior  offenses. 

III.  Procedure.  X.  Property  seized  with  fugitive. 

IV.  Provisional    detention.  XL  Persons     claimed     by     other 

V.  Nondelivery  of  citizens.  countries. 

VI.  Political    offenses.  XII.  Expenses. 

VII.  Limitations.  XIII.  Duration;   ratification. 


PERU— BOLIVIA. 

1836. 
CONVENTION  OF  PEACE,  FRIENDSHIP,  COMMERCE,  AND  NAVIGATION. 

Concluded  November  30,  1836 ;  ratification  advised  by  the  Senate 
October  10,  1837 ;  ratified  by  the  President  October  14,  1837 ; 
ratifications  exchanged  May  28,  1838;  proclaimed  October  3, 
1838.  (Treaties  and  Conventions,  1889,  p.  840.) 

U.  S.  Treaties  1904,  p.  634;    8  Stats,  at  Large,  487. 
This  convention  terminated  by  the  dissolution  of  the  Peru-Bolivia 
Confederation  in  1839. 


PORTUGAL. 

1840. 
TREATY  OP  COMMERCE  AND  NAVIGATION.1 

Concluded  August  26,  1840;  ratification  advised  by  the  Senate 
February  3,  1841;  ratified  by  the  President  April  23,  1841; 
ratifications  exchanged  April  23,  1841;  proclaimed  April  24, 
1841.  (Treaties  and  Conventions,  1889,  p.  891.) 

U.  S.  Treaties  1904,  p.  635;    8  Stats,  at  Large,  560. 
This  general  treaty  of  fourteen  articles  was  terminated  by  notice 
of  the  Portuguese  government  January  31,  1892. 

1  See  Olclfielcl  v.  Marriott,  10  How.  146,  13  L.  ed.  364. 
Treaties — 47 


738  APPENDIX   II. 

1851. 
CLAIMS  CONVENTION. 

Concluded  February  26,  1851;  ratification  advised  by  the  Senate 
March  7,  1851;  ratified  by  the  President  March  10,  1851;  rati- 
fications exchanged  June  23,  1851;  proclaimed  September  1, 
1851.  (Treaties  and  Conventions,  1889,  p.  896.) 

U.  S.  Treaties  1904,  p.  635;    10  Stats,  at  Large,  Treaties,  91. 

By  this  convention  Portugal  agreed  to  pay  the  United  States 
$91,727  in  full  for  all  claims  of  American  citizens  against  Portugal, 
except  the  claim  of  the  brig  "General  Armstrong/1  which  was  re- 
ferred to  an  arbitrator.  Louis  Napoleon,  President  of  France,  was 
appointed  arbitrator  of  the  "General  Armstrong"  claim,  and  No- 
vember 30,  1852,  decided  that  no  indemnity  was  due  from  Portugal 
to  the  United  States  on  account  of  the  claim. 

1900. 

RECIPROCAL  COMMERCIAL  ARRANGEMENT  WITH  PORTUGAL. 
Signed  May  22,  1899;  proclaimed  June  12,  1900. 
IT.  S.  Treaties  1904,  p.  635;   31  Stats,  at  Large,  1913,  1974. 

ABTICLES. 

I.  Concessions  by  United  States.         III.  Termination. 
II.  Concessions  by  Portugal.  IV.  Ratification. 


PRUSSIA. 

(See,  also,  GERMAN  EMPIRE  AND  NORTH  GERMAN  UNION.) 

1785. 
TREATY  OF  AMITY  AND  COMMERCE. 

Concluded  September  10,  1785;  ratified  by  the  Congress  of  the 
United  States  May  17,  1786;  ratifications  exchanged  October, 
1786.  (Treaties  and  Conventions,  1889,  p.  899.) 

U.  S.  Treaties  1904,  p.  636;    8  Stats,  at  Large,  84. 


APPENDIX   II.  739 

This  treaty  of  twenty-seven  articles  expired  by  its  own  limitations 
October,  1796,  but  Article  XII  was  revived  by  Article  XII  of  the 
Treaty  of  1828.  This  article  relates  to  the  neutrality  of  vessels. 

1799. 
TREATY  OF  AMITY  AND  COMMERCE. 

Concluded  July  11, 1799;  ratification  advised  by  the  Senate  Febru- 
ary 18, 1800;  ratified  by  the  President  February  19, 1800;  rati- 
fications exchanged  June  22,  1800;  proclaimed  November  4, 
1800,  (Treaties  and  Conventions,  1889,  p.  907.) 

U.  S.  Treaties  1904,  p.  636;    8  Stats,  at  Large,  162. 
This  treaty  expired  by  its  own  limitations  June  22,  1810;  but 
the  provisions  of  the  articles  printed  hereunder  were  revived  by 
Article  XII  of  the  Treaty  of  May  1,  1828. 

AETICLES. 

XIII.  Detention      of      contraband  XX.  Letters  of  marque. 

goods.  XXI.  Eules  in  case  of  war  with 

XIV.  Ships  papers  in  time  of  war.  common  enemy. 

XV.  Visit  to  neutral  ships.  XXII.  Mutual    protection   of   ships 

XVI.  Embargoes,  seizures,  etc.  against  common  enemy. 

XVII.  Kestoration  of  neutral  ships.  XXIII.  Protection  in  case  of  war. 

XVIII.  Asylum    to    vessels    in     dis-  XXIV.  Treatment    of    prisoners     of 

tress.  war. 
XIX.  Prizes. 

1828. 

TREATY  OF  COMMERCE  AND  NAVIGATION.1 

Concluded  May  1,  1828;  ratification  advised  by  the  Senate  May 
14,  1828;  ratified  by  the  President;  ratification  again  advised 
and  time  for  exchange  of  ratification  extended  by  the  Senate 
March  9,  1829;  ratifications  exchanged  March  14,  1829;  pro- 
claimed March  14,  1829.  (Treaties  and  Conventions,  1889,  p. 
916.) 

U.  S.  Treaties  1904,  p.  643;    8  Stats,  at  Large,  378. 

*See  Ex  parte  Newman,  14  Wall.  438,  Fed.  Gas.  No.  4426;  North  Ger 

U52,  20  L.  ed.  877;  United  States  man  Lloyd  S.  S.  Co.  v.  Hedden,  43 

jv.  Diekelman,  92  U.  S.  520,  23  L.  Fed.  17;  Diekelman  v.  United  States, 

ed.  742;  The  Elwine  Kreplin,  4  Ben.  8   Ct.  of  Cl.  371. 

417,  Fed.  Gas.  No.  4427,  9  Blatchf. 


740 


APPENDIX   II. 


AETICLES. 

I.  Freedom     of     commerce     and  VIII. 

navigation. 

II.  No  discrimination  of  shipping  IX. 

charges. 

III.  No   discrimination    in    import  X. 

duties  on  account  of  vessels. 

IV.  Application  of  two  preceding  XL 

sections.  XII. 
V.  No    discrimination    of    import 

duties.  XIII. 

VI.  No    discrimination    of    export  XIV. 

duties.  XV. 

VII.  Coastwise   trade.  XVI. 


No  preference  to  importing 
vessel. 

Most  favored  nation  commer- 
cial privileges. 

Consular  privileges  and  juris- 
diction. 

Deserters    from    ships. 

Articles  of  former  treaties  re- 
vived. 

Blockades. 

Estates    of    deceased    persons. 

Duration. 

Eatification. 


1852. 
EXTRADITION  CONVENTION.1 

Concluded  June  16,  1852;  ratification  advised  by  the  Senate  March 
15,  1853;  ratified  by  the  President  May  27,  1853;  ratifications 
exchanged  May  30,  1853;  proclaimed  June  1,  1853.  (Treaties 
and  Conventions,  1889,  p.  921.) 

U.  S.  Treaties  1904,  p.  648. 

(This  treaty  was  concluded  by  the  King  of  Prussia  for  the 
Kingdom  of  Prussia  and  other  states  of  the  Germanic  Confederation 
therein  named.  It  was  acceded  to  by  the  following  German  states : 
Bremen,  Mecklenburg-Schwerin,  Mecklenburg-Strelitz,  Oldenburg, 
Schaumburg-Lippe,  and  Wiirttemberg. ) 


AETICLES. 

I.  Extraditable  crimes;     procedure.  IV.  Persons   under   trial. 
II.  Accession     of     other      German         V.  Duration. 

States.  VI.  Eatification. 
III.  Nondelivery  of  citizens. 

1  See  In  re  Henrich,  5  Blatchf.  414,  Behrendt,   22  Fed.    699,  23   Blatcl 

Fed.    Cas.    No.    6369;    In    re    Stupp,  40;    In    re    Eisch,   36    Fed.    546;    In 

11     Blatchf.    124,     Fed.    Cas.     No.  re   Krozanker,  44  Fed.   482;   Terlin- 

13,562;   In  re   Wiegand,   14  Blatchf.  den  v.  Ames,  184  U.  S.  270,  22  Sup. 

370,    Fed.    Cas.    No.    17,618;    In    re  Ct.  Eep.  484,  46  L.  ed.  534. 


APPENDIX  II.  741 

ROUMANIA. 

1881. 
CONSULAR  CONVENTION. 

Concluded  June  17,  1881;  ratification  advised  by  the  Senate  April 
3,  1882;  ratified  by  the  President  April  6,  1882;  ratifications 
exchanged  June  13,  1883 ;  proclaimed  July  9,  1883.  (Treaties 
and  Conventions,  1889,  p.  925.) 

U.  S.  Treaties  1904,  p.  652;    23  Stats,  at  Large,  711. 

AETICLES. 

I.  Consular  officers.  VIII.  Vice-consuls  and  agents. 

II.  Most  favored  nation  consular  X.  Applications  to  authorities. 

privileges.  X.  Notarial  powers. 

III.  Exemptions.  XL  Shipping    disputes. 

IV.  Testimony  by  consuls.  XII.  Deserters    from    ships. 

V.  Arms    and    flags.  XIII.  Damages   to   vessels  at   sea. 

VI.  Immunities  of  offices   and  ar-       XIV.  Shipwrecks   and   salvage. 

chives.  XV.  Estates  of  deceased  persons. 

VII.  Acting   officers.  XVI.  Duration;  ratification. 


1906. 


CONVENTION  BETWEEN  THE  UNITED  STATES  AND  ROUMANIA  FOR  THE 
RECIPROCAL  PROTECTION  OF  TRADEMARKS. 

Signed  at  Bucharest  March  18-31,  1906 ;  ratification  advised  by  the 
Senate  May  4,  1906;  ratified  by  the  President  May  10,  1906; 
ratified  by  Roumania  June  20,  1906 ;  ratifications  exchanged 
at  Bucharest  June  21,  1906 ;  proclaimed  June  25,  1906. 

Treaties  and  Proclamations,  2901;     34  Stats,  at  Large,   pt.  3,  2901. 

AETICLES. 

I.  Keciprocal  rights  of  citizens  of         II.  Conforming  to  laws  and  regula- 
each  country.  tions. 

III.  Effect. 


742  APPENDIX  II. 

RUSSIA. 

1824. 

CONVENTION  AS  TO  THE  PACIFIC  OCEAN  AND  NORTHWEST  COAST  OF 

AMERICA. 

Concluded  April  17,  1824;  ratification  advised  by  the  Senate  Jan- 
uary 5,  1825;  ratified  by  the  President  January  7,  1825;  ratifi- 
cations exchanged  January  11,  1825;  proclaimed  January  12, 
1825.  (Treaties  and  Conventions,  1889,  p.  931.) 

IT.  S.  Treaties  1904,  p.  657;    8  Stats,  at  Large,  302. 

<Jn  the  treaty  volumes  the  translation  is  from  the  original,  which 
is  in  the  French  language.) 

ARTICLES. 
I.  Navigation,    fishing,    and    trad-       IV.  Temporary   fishing   and   trading 

ing.  agreement. 

II.  Illicit  trade.  V.  Sale  of  liquors  and  firearms  pro- 

Ill.  Mutual  limit   of    occupation    of  hibited. 

northwest  coast.  VI.  Ratification. 

1832. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  December  18,  1832;  ratification  advised  by  the  Senate 
February  27,  1833;  ratified  by  the  President  April  8,  1833; 
ratifications  exchanged  May  11, 1833;  proclaimed  May  11, 1833. 
(Treaties  and  Conventions,  1889,  p.  933.) 

U.  S.  Treaties  1904,  p.  659;    8  Stats,  at  Large,  444. 

ARTICLES. 

I.  Freedom    of     commerce     and  VIII.  Consular   officers   and  powers 

navigation.  IX.  Deserters    from    ships. 

II.  Reciprocal   treatment    of   ves-  X.  Estates   of   deceased   persons 

sels.  XI.  Most     favored     nation     com 

III.  No  discrimination  on  account  mercial    privileges. 

of  vessels  importing.  XII.  Duration. 

IV.  Application  of  two  preceding  XIII.  Ratification. 

articles.  Separate   article:    Trade   with  Prus- 

V.  Export  duties.  sia,  Sweden,  Norway,  Poland,  and 

VI.  Import  duties.  Finland. 
VII.  Coastwise  trade. 


APPENDIX  II.  743 

1854. 
CONVENTION  AS  TO  RIGHTS  OF  NEUTRALS  AT  SEA. 

Concluded  July  22,  1854;  ratification  advised  by  the  Senate  July 
25,  1854;  ratified  by  the  President  August  12,  1854;  ratifica- 
tions exchanged  October  31,  1854;  proclaimed  November  1, 
1854.  (Treaties  and  Conventions,  1889,  p.  938.) 

U.  S.  Treaties  1904,  p.  664;    10  Stats,  at  Large,  Treaties,  215. 

AETICLES. 
I.  Principles    of    free     ships    and       III.  Accession    of    other    nations. 

neutral  property.  IV.  Eatification. 

II.  Extension  of  principles. 

1867. 
CONVENTION  CEDING  ALASKA.1 

Concluded  March  30, 1867 ;  ratification  advised  by  the  Senate  April 
9,  1867 ;  ratified  by  the  President  May  28,  1867 ;  ratifications 
exchanged  June  20, 1867 ;  proclaimed  June  20, 1867.  (Treaties 
and  Conventions,  1889,  p.  939.) 

U.  S.  Treaties  1904,  p.  666;    15  Stats,  at  Large,  539. 

AETICLES. 

I.  Territory    ceded;    boundaries.  IV.  Formal    delivery. 

II.  Public    property    ceded.  V.  Withdrawal    of    troops. 

III.  Citizenship  of  inhabitants;  un-         VI.  Payment;    effect    of    cession, 
civilized   tribes.  VII.  Eatification. 

1868. 
ADDITIONAL  ARTICLE  TO  TREATY  OF  COMMERCE,  1832.     TRADEMARKS 

Concluded  January  27,  1868;  ratification  advised  by  the  Senate 
July  25,  1868;  ratified  by  the  President  August  14,  1868;  rati- 
fications exchanged  September  21,  1868;  proclaimed  October 
15,  1868.  (Treaties  and  Conventions,  1889,  p.  942.) 

U.  S.  Treaties  1904,  p.  669;    16  Stats,  at  Large,  725. 

ARTICLE. — COUNTERFEITING  OF  TRADEMARKS  PROHIBITED;  REGISTRA- 
TION. 

1  See    Kinkead   v.    United    States,       24  Ct.  of  Cl.  459;   Callsen  v.  Hope, 
150  U.  S.  483,  14  Sup.  Ct.  Eep.  172,       75  Fed.  758. 
37  L.   ed.   1152,    18   Ct.   of  Cl.   504, 


744  APPENDIX   II. 

1874. 
TRADEMARK  DECLARATION. 

Signed  March  28,  1874;  ratification  advised  by  the  Senate  June  22, 
1874;  ratified  by  the  President  June  26,  1874;  proclaimed 
November  24,  1874.  (Treaties  and  Conventions,  1889,  p.  943.) 

U.  S.  Treaties  1904,  p.  670;    18  Stats,  at  Large,  145. 
1884. 

DECLARATION  CONCERNING  THE  ADMEASUREMENT  OF  VESSELS. 
Signed  June  6,  1884. 

DECLARATION. 

The  English  method  for  the  admeasurement  of  vessels  (the 
Moorsom  system)  being  now  in  force  not  only  in  the  United  States 
of  America  but  also  in  the  Empire  of  Russia  and  the  Grand  Duchy 
of  Finland  is  adopted. 

U.  S.  Treaties  1904,  p.  670;    23  Stats,  at  Large,  789. 

1887. 
/ 

EXTRADITION  CONVENTION.* 

Concluded  March  28,  1887 ;  ratification  advised  by  the  Senate  witt 
amendments  February  6,  1893 ;  ratified  by  the  President  Fe( 
ruary  14,  1893;  ratifications  exchanged  April  21,  1893;  prc 
claimed  June  5,  1893. 

U.  S.  Treaties  1904,  p.  672;    28  Stats,  at  Large,  1071. 

'See    Tucker    v.    Alexandroff,    183       S.    181,   23    Sup.   Ct.   Eep.   98,   47 
U.  S.  424,  22  Sup.  Ct.  Eep.  195,  46       ed.    130;    In   re   Grin,    112   Fed.    79( 
L.    ed.    264;    Brin   v.    Shine,    187   U. 


APPENDIX   II.  745 

AETICLES. 

I.  Surrender     of     accused;     evi-         VII.  Provisional    detention. 

dence.  VIII.  Articles  taken  with  fugitives. 

II.  Extraditable   crimes.  IX.  Persons    claimed    by    a    third 

III.  Political    offenses.  country. 

IV.  Nondelivery    of    citizens.  X.  Expenses. 

V.  Persons   under    trial.  XI.  Duration;  ratification. 
VI.  Procedure. 

1894. 

AGREEMENT  FOR  A  MODUS  VIVENDI  IN  RELATION  TO  THE  FUR-SEAL 
FISHERIES  IN  BERING  SEA  AND  THE  NORTH  PACIFIC  OCEAN. 

Concluded  May  4,  1894;  ratification  advised  by  the  Senate  May  9, 
1894;  proclaimed  May  12,  1894. 

U.  S.  Treaties  1904,  p.  675;    28  Stats,  at  Large,  1202. 

PAKAGEAPHS. 

1.  Sealing    by    United    States    citi-       3.  Trials. 

zens      prohibited      on      Eussian       4.  Limit  of  catch, 
coasts.  5.  Eetroactive   force. 

2.  Seizure  of  offending  vessels.  6.  Termination  at  will. 


SALVADOR. 

(FORMERLY   SAN   SALVADOR.) 

1850. 
CONVENTION  OF  AMITY,  NAVIGATION  AND  COMMERCE. 

Concluded  January  2,  1850;  ratification  advised  by  the  Senate  Sep- 
tember 24,  1850;  ratified  by  the  President  November  14,  1850; 
time  for  exchange  of  ratifications  extended  by  the  Senate  Sep- 
tember 27, 1850;  ratifications  exchanged  June  2, 1852;  exchange 
of  ratifications  consented  to  by  the  Senate  April  4,  1853;  pro- 
claimed April  18,  1853.  (Treaties  and  Conventions,  1889,  p. 
945.) 

U.  S.  Treaties  1904,  p.  677;    10  Stats,  at  Large,  Treaties,  71. 

This  treaty  of  thirty-six  articles  was  superseded  by  the  Treaty 
of  December  6,  1870. 


746  APPENDIX  II. 

1870. 
EXTRADITION  CONVENTION. 

Concluded  May  23, 1870;  ratification  advised  by  the  Senate  Decem- 
ber 9,  1870;  ratified  by  the  President  December  16,  1870;  time 
for  exchange  of  ratifications  extended  by  conventions  of  May 
12,  1873;  ratifications  exchanged  March  2,  1874;  proclaimed 

March  4,  1874.     (Treaties  and  Conventions,  1889,  p.  955.) 

• 
U.  S.  Treaties  1904,  p.  677;    18  Stats,  at  Large,  Treaties,  9. 

This  convention,  consisting  of  eight  articles,  was  denounced  on 
notice  given  by  Salvador,  to  take  effect  March  2,  1904. 

1870. 
TREATY  OF  AMITY,  COMMERCE,  AND  CONSULAR  PRIVILEGES. 

Concluded  December  6,  1870;  ratification  advised  by  the  Senate 
March  31,  1871;  ratified  by  the  President  April  11,  1871;  time 
for  exchange  of  ratifications  extended  by  convention  of  May 
12,  1873;  ratifications  exchanged  March  11,  1874;  proclaimed 
March  13, 1874.  (Treaties  and  Conventions,  1889,  p.  957.) 

U.  S.  Treaties  1904,  p.  677;    18  Stats,  at  Large,  Treaties,  41. 

Upon  notice  from  the  government  of  Salvador  this  general  treaty 
of  thirty-nine  articles  was  abrogated  May  30,  1893. 

1873. 
EXTRADITION  CONVENTION. 

Concluded  May  12,  1873;  ratification  advised  by  the  Senate  Febru- 
ary 9,  1874;  ratified  by  the  President  February  16,  1874;  rati- 
fications exchanged  March  2,  1874;  proclaimed  March  4,  1874. 

U.  S.  Treaties  1904,  p.  678;    18  Stats,  at  Large,  796. 

This  convention  extended  for  one  year  the  time  for  the  ex- 
change of  ratifications  of  the  Extradition  Convention  of  May  23, 
1870. 


APPENDIX  II.  747 

1873. 
CONVENTION  OF  AMITY,  COMMERCE,  AND  CONSULAR  PRIVILEGES. 

Concluded  May  12,  1873;  ratification  advised  by  the  Senate  March 
2,  1874;  ratified  by  the  Senate  March  10,  1874;  ratifications 
exchanged  March  11, 1874;  proclaimed  March  13, 1874. 

U.  S.  Treaties  1904,  p.  678;    18  Stats,  at  Large,  114. 

The  time  for  the  exchange  of  ratifications   of  the   Treaty  of 
December  6,  1870,  was  extended  one  year  by  this  convention. 


SAMOAN  ISLANDS. 

1878. 
TREATY  OF  FRIENDSHIP  AND   COMMERCE. 

Concluded  January  17, 1878;  ratification  advised  ~by  the  Senate  with 
amendments  January  30,  1878;  ratified  by  the  President  Feb- 
ruary 8,  1878;  ratifications  exchanged  February  11,  1878;  pro- 
claimed February  13,  1878.  (Treaties  and  Conventions,  1889, 
p.  972.) 

U.  S.  Treaties  1904,  p.  679;    20  Stats,  at  Large,  704. 

This  treaty,  consisting  of  eight  articles,  is  annulled  by  Treaty  of 
December  2,  1899,  between  United  States,  Germany,  and  Great 
Britain. 

1889. 

GENERAL  ACT  PROVIDING  FOR  THE  NEUTRALITY  AND  AUTONOMOUS 
GOVERNMENT  OF  THE  SAMOAN  ISLANDS. 

Concluded  at  Berlin  June  14,  1889;  ratification  advised  by  the 
Senate  February  4,  1890;  ratified  by  the  President  February 
21,  1890;  ratifications  exchanged  April  12,  1890;  assented  to 
by  Samoa  April  19,  1890;  proclaimed  May  21,  1890. 

U.  S.  Treaties  1904,  p.  679;   26  Stats,  at  Large,  1497. 

This  general  act,  consisting  of  eight  articles,  was  expressly  an- 
nulled by  Treaty  of  December  2,  1899,  between  United  States,  Ger- 
many, and  Great  Britain. 


748  APPENDIX   II. 


1899. 

CONVENTION  BETWEEN  UNITED  STATES,  GERMANY,  AND  GREAT  BRIT- 
AIN RELATING  TO  SETTLEMENT  OP  SAMOAN  CLAIMS. 

Concluded  November  7,  1899 ;  ratification  advised  by  Senate  Febru- 
ary 21,  1900;  ratified  by  President  March  5,  1900;  ratifications 
exchanged  March  7, 1900;  proclaimed  March  8,  1900. 

U.  S.  Treaties  19U4,  p.  679;    31  Stats,  at  Large,  1875. 

ARTICLES. 

I.  Claims   considered.  III.  Claims   of   persons   not   natives. 

II.  Arbitrator.  IV.  Ratifications. 

1902. 

SAMOAN  CLAIMS  DECISION. 

Decision  given  by  His  Majesty  Oscar  II,  King  of  Sweden  and  Nor- 
way, as  arbitrator  under  convention  of  November  7,  1899,  be- 
tween Germany,  Great  Britain,  and  the  United  States,  relating 
to  claims  on  account  of  military  operations  conducted  in  Samoa 
in  1899,  given  at  Stockholm  October  14,  1902. 

U.  S.  Treaties  1904,  p.  681. 

1899. 

CONVENTION  TO  ADJUST  THE  QUESTION  BETWEEN  THE  UNITED 
STATES,  GERMANY,  AND  GREAT  BRITAIN  IN  RESPECT  TO  THE 
SAMOAN  ISLANDS. 

Concluded  December  2,  1899 ;  ratification  advised  by  Senate  Janu- 
ary 16,  1900;  ratified  by  the  President  February  13,  1900;  rati- 
fications exchanged  February  16,  1900;  proclaimed  February 
16,  1900. 

U.  S.  Treaties  1904,  p.  685;   31  Stats,  at  Large,  1878. 

ARTICLES. 

I.  General    act    and    treaties    an-       III.  Commercial    privileges. 

nulled.  IV.  Ratifications. 

II.  Reciprocal  renunciations. 


APPENDIX   II.  749 


SARDINIA. 

1838. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  November  26,  1838;  ratification  advised  by  the  Senate 
March  2,  1839;  ratified  by  the  President  March  8,  1839;  ratifi- 
cations exchanged  March  18,  1839;  proclaimed  March  18,  1839. 
(Treaties  and  Conventions,  1889,  p.  974.) 

U.  S.  Treaties  1904,  p.  687;    8  Stats,  at  Large,  512. 
This  treaty  of  twenty  .articles  and  a  separate  article  was  super- 
seded by  the  Treaty  of  1871  with  Italy  as  Sardinia  had  become 
merged  into  that  kingdom. 


SAXONY. 

(See  GERMAN  EMPIRE.) 

1845. 
CONVENTION  ABOLISHING  DROIT  D'AUBAINE  AND  EMIGRATION  TAXES. 

Concluded  May  14,  1845;  ratification  advised  by  the  Senate,  with 
amendment,  April  15,  1846;  ratified  by  the  President  April  22, 
1846 ;  ratifications  exchanged  August  12,  1846;  proclaimed 
September  9,  1846.  (Treaties  and  Conventions,  1889,  p.  981.) 

U.  S.  Treaties  1904,  p.  688;    9  Stats,  at  Large,  Treaties,  40. 

ARTICLES. 

I.  Taxes  abolished.  V.  Suits. 

II.  Disposal    of    real    property.  VI.  Extent    of    treaty    provisions. 

III.  Disposal   of   personal   property.       VII.  Ratification. 
IV.  Protection     of     rights     of     ab- 
sent  heirs. 


SCHAUMBURG-LIPPE. 

(See  GERMAN  EMPIRE.) 

The  Principality  of  Schaumburg-Lippe,  June  7,  1854,  acceded  to 
the  Extradition  Convention  concluded  with  Prussia  and  other 
German  States,  June  16,  1852,  and  the  additional  article  of  No- 
vember 16,  1852. 

U.  S.  Treaties  1904,  p.  689;    10  Stats,  at  Large,  Treaties,  106. 


750  APPENDIX   II. 

SERVIA. 

1881. 
CONVENTION  OF  COMMERCE  AND  NAVIGATION. 

Concluded  October  14, 1881;  ratification  advised  by  the  Senate  July 
5,  1882;  ratified  by  the  President  July  14,  1882;  ratifications 
exchanged  November  15,  1882;  proclaimed  December  27,  1882. 
(Treaties  and  Conventions,  1889,  p.  984.) 

U.  S.  Treaties  1904,  p.  690;    22  Stats,  at  Large,  963. 

ARTICLES. 

I.  Freedom    of    commerce,    navi-         VII.  Freedom   of  imports. 

gatioD     and    trade.  VIII.  Transit  of  goods. 
II.  Bights    of    real    and    personal  IX.  Ad  valorem  duties. 

property.  X.  Exceptions   of  local   traffic. 

III.  Trade   privileges.  XI.  Freight  on  railways. 

IV.  Exemptions,  etc.  XII.  Trademarks. 

V.  Prohibitions   of  imports,  etc.,  XIII.  Shipping  charges. 

restricted.  XIV.  Duration. 
VI.  Import    and    export    duties.  XV.  Ratification. 

1881. 
CONSULAR  CONVENTION. 

Concluded  October  14, 1881;  ratification  advised  by  the  Senate  July 
5,  1882;  ratified  by  the  President  July  14,  1882;  ratifications 
exchanged  November  15,  1882;  proclaimed  December  27,  1882. 
(Treaties  and  Conventions,  1889,  p.  988.) 

U.  S.  Treaties  1904,  p.  694;    22  Stats,  at  Large,  968. 

AETICLES. 

I.  Consular    officers.  VIII.  Vice-consuls  and  agents. 

II.  Exequaturs.  IX.  Correspondence   with    authori- 

III.  Exemptions.  ties. 

IV.  Testimony     by     consular  of-             X.  Notarial    services. 

ficers.  XI.  Estates  of  deceased  persons. 

V.  Arms    and    flag.  XII.  Surrender     of      certain     privi- 

VI.  Inviolability  of  archives  and                       leges. 

offices.  XIII.  Duration;    ratification. 
VII.  Acting  officers. 


APPENDIX  II.  751 

1901. 
EXTRADITION  TREATY. 

Concluded  October  25, 1901;  ratification  advised  by  Senate  January 
27,  1902;  ratified  by  President  March  7,  1902;  ratifications  ex- 
changed May  13, 1902;  proclaimed  May  17, 1902. 

U.  S.  Treaties  1904,  p.  698;    32  Stats,  at  Large,  1890. 

ARTICLES. 

I.  Delivery  of  accused.  VIII.  Prior  offenses. 
II.  Extraditable    crimes.                     .        IX.  Property  seized  with  fugitive. 

III.  Procedure.  X.  Persons     claimed     by     other 

IV.  Provisional    detention.  countries. 

V.  Nondelivery  of  citizens.  XI.  Expenses;    duration;    ratifica- 

VI.  Political    offenses.  tion. 
Til.  Limitations. 


SIAM. 

1833. 
CONVENTION  OF  AMITY  AND  COMMERCE. 

Concluded  March  20,  1833;  ratification  advised  by  the  Senate  June 
30,  1834;  ratified  by  the  President;  ratifications  exchanged 
April  14, 1836;  proclaimed  June  24, 1837.  (Treaties  and  Con- 
ventions, 1889,  p.  992.) 

U.  S.  Treaties  1904,  p.  703;    8  Stats,  at  Large,  454. 

(The  provisions  of  this  treaty  'were  modified  by  the  Treaty  of 
1856.) 

ARTICLES. 

I.  Peace.  VI.  Settlement  of  debts. 

II.  Freedom  of   trade,  etc.  VII.  Trading   in    Siam. 

III.  Shipping   duties   in   Siam.  VIII.  Capture  by  pirates. 

IV.  Most  favored  nation   duties.  IX.  Laws  of  Siam. 

V.  Shipwrecks.  X.  Consuls  in  Siam. 


752  APPENDIX   II. 

1856. 
TREATY  OF  AMITY  AND  COMMERCE. 

Concluded  May  29,  1856;  ratification  advised  by  the  Senate  with 
amendment  March  13,  1857 ;  ratified  by  the  President  March 
16,  1857 ;  ratifications  exchanged  June  15,  1857  ;  time  for  ex- 
change of  ratifications  extended  by  the  Senate  June  15,  1858 ; 
proclaimed  August  16, 1858.  (Treaties  and  Conventions,  1889, 
p.  995.) 

U.  S.  Treaties  1904,  p.  706;    11  Stats,  at  Large,  683. 

AETICLES. 

I.  Amity;    mutual    assistance.  VIII.  Duties;    trade,    etc. 

II.  Consul    at    Bangkok;    powers.  IX.  Treaty   regulations. 

III.  Offenses  in  Siam.  X.  Most    favored    nation    privi- 
IV.  Trade   privileges  in   Siam.  leges. 

V.  Americans  in  Siam.  XI.  Duration;    revision. 

VI.  Keligious    freedom,    etc.  XII.  Eatification. 

VII.  Privileges  to  ships  of  war  in 
Siam. 

1867. 

MODIFICATION  TO  TREATY  OF  AMITY  AND  COMMERCE  OF  MAY  29,  1856. 

Concluded  December  17-31,  1867 ;  ratification  advised  by  Senate 
July  25,  1868;  ratified  by  the  President  August  11,  1868. 

U.  S.  Treaties  1904,  p.  713;    17  Stats,  at  Large,  807. 

1884. 
AGREEMENT  REGULATING  LIQUOR  TRAFFIC  IN  SIAM. 

Concluded  May  14,  1884;  ratification  advised  by  the  Senate  Ju 
28,  1884;  ratified  by  the  President  June  30,  1884;  ratificatio 
exchanged  June  30,  1884;  proclaimed  July  5,  1884. 

U.  S.  Treaties  1904,  p.  714;    23  Stats,  at  Large,  782. 

AETICLES. 

I.  Duties    on    liquors.  V.  Most     favored     nation     pri 

II.  Testing   of  spirits.  leges. 

III.  Deleterious    spirits.  VI.  Duration. 

IV.  Licenses  to  sell.  VII.  Eatification,  etc. 


APPENDIX  II.  753 

SPAIN. 

1795.1 
TREATY  OF  FRIENDSHIP,  BOUNDARIES,  COMMERCE  AND  NAVIGATION. 

Concluded  October  27,  1795;  ratification  advised  ~by  the  Senate 
March  3,  1796;  ratified  by  the  President;  ratifications  ex- 
changed April  25, 1796;  proclaimed  August  2, 1796.  (Treaties 
and  Conventions,  1889,  p.  1006.) 

U.  S.  Treaties  1904,  p.  717;    8  Stats,  at  Large,  138. 

This  treaty  consisted  of  twenty-three  articles.  It  contained  an 
agreement  as  to  the  southern  and  western  boundaries  of  the  United 
States;  the  mutual  free  navigation  of  the  Mississippi  River  from 
its  source  to  the  ocean ;  the  usual  articles  relating  to  commerce  and 
navigation;  the  authority  to  appoint  consuls;  the  appointment  of 
a  claims  commission  to  settle  claims  of  United  States  citizens  against 
Spain,  etc.  The  claims  commission  provided  for  met  in  Phila- 
delphia, terminating  their  duties  December  31,  1799,  having  made 
awards  to  the  amount  of  $325,440.071/i>  on  account  of  Spanish  spo- 
liations. 

1802. 
CLAIMS  CONVENTION. 

Concluded  August  11,  1802;  ratification  advised  by  the  Senate 
January  9,  1804;  ratified  by  the  President  January  9,  1804; 
ratifications  exchanged  December  21,  1818;  proclaimed  Decem- 
ber 22,  1818.  (Treaties  and  Conventions,  1889,  p.  1015.) 

U.  S.  Treaties  1904,  p.  717;    8  Stats,  at  Large,  198. 

'See  The  Nereide,  9  Cranch,  388,1  I  Wheat.    530,    6    L.    ed.    718;    United 

3  L.  ed.  769;  The  Pezarro,  2  Wheat/      States    v.    The    Amistead,    15    Pet. 
227,  4  L.  ed.  226;  The  Nuestra  Se-       518,  10  L.  ed.  826;  Pollard  v.  Hagan, 
iiora   de   la   Caridad,   4   Wheat.   497,       3   How.   212,   11   L.   ed.   565;   Eobin- 

4  L.  ed.   624;    The  Amiable  Isabella,       son   v.    Minor,    10    How.    627,    13    L. 
6  Wheat.  1,  5  L.  ed.  191;  The  Bello    ^  ed.    568;    Le   Tiqre,   3    Wash.    C.    C. 
Oorrunes,    6    Wheat.    152,    5    L.    ed.       567,  Fed  Gas.  No.  8281;  The  Santis- 
229;     The    Santissima     Trinidad,     7       sima   Trinidad,    1    Brock,   478,    Fed. 
Wheat.   283,   5  L.   ed.   454;    Hender-       Gas.    No.    2568. 

son     v.     Poindexter's     Lessee,     12 
Treaties — 48 


754 


APPENDIX  II. 


This  convention  provided  for  the  appointment  of  a  board  o 
five  commissioners  to  adjust  the  claims  for  "indemnification  o 
those  who  have  sustained  losses,  damages,  or  injuries  in  conse 
quence  of  the  excesses  of  individuals  of  either  nation  during  th 
late  war  contrary  to  the  existing  treaty  or  the  laws  of  nations.' 
As  the  convention  was  not  proclaimed  until  the  22d  of  December 
1818,  and  was  annulled  by  Article  X  of  the  Treaty  of  1819,  it  neve 
went  into  effect. 


1819.1 
TREATY  OF  FRIENDSHIP,  CESSION  OF  THE  FLORIDAS,  AND  BOUNDARIES 

Concluded  February  22,  1819;  ratification  advised  by  the  Senat 
February  24,  1819;  ratification  advised  again  by  the  Senat 
February  19, 1821;  ratified  by  the  President  February  22, 1821 
ratifications  exchanged  February  22,  1821;  proclaimed  Febru 
ary  22, 1821.  (Treaties  and  Conventions,  1889,  p.  1016.) 

U.  S.  Treaties  1904,  p.  718;    8  Stats,  at  Large,  252. 


1  See  Comegys  v.  Vasse,  1  Pet. 
193,  7  L.  ed.  108,  4  Wash.  C.  C. 
570,  Fed.  Gas.  No.  16,894;  Ameri- 
can Ins.  Co.  v.  365  Bales  of  Cot- 
ton, 1  Pet.  511,  7  L.  ed.  243;  Fos- 
ter v.  Neilson,  2  Pet.  253,  7  L. 
ed.  415;  United  States  v.  Arredondo, 
6  Pet.  691,  8  L.  ed.  547;  United 
States  v.  Percheman,  7  Pet.  51,  8  L. 
ed.  604;  United  States  v.  Clarke, 

8  Pet.    436,    8   L.    ed.    1001,    9   Pet. 
168,  9  L.  ed.  89,  16  Pet.  228,  10  L. 
ed.   946;    Mitchel  v.   United   States, 

9  Pet.    711,    9    L.    ed.    283;    United 
States    v.    Sibbald,    10    Pet.    313,    9 
L.  ed.  437;  Smith  v.  United  States, 

10  Pet.   326,   9   L.   ed.   442;    United 
States  v.  Mill's  Heirs,  12  Pet.  215, 
9    L.    ed.    1061;    United    States    v. 
Kingsley,  12  Pet.  476,  9  L.  ed.  1163; 
Garcia  v.  Lee,  12  Pet.  511,  9  L.  ed. 
1176;  United  States  v.  Wiggins,  14 
Pet.   334,  10  L.   ed.  481;  Pollard  v. 


Kibbe,  14  Pet.  353,  10  L.  ed.  490 
O'Hara  v.  United  States,  15  Pe 
275,  10  L.  ed.  737;  United  State 
v.  Delespine,  15  Pet.  319,  10  L.  ed 
753;  United  States  v.  The  Amistead 

15  Pet.  518,   10  L.   ed.   826;   United 
States  v.  Breward,   16  Pet.   143,   1C 
L.    ed.    916;    United    States    v.    Mi 
randa,   16   Pet.    153,   10   L.   ed.   920: 
United    States    v.    Hanson,    16    Pet 
196,    10    L.    ed.    935;    United    State* 
v.  Acosta,  1  How.  24,  11  L.  ed.  33 
Pollard  v.  Files,  2  How.  591,  11  L 
ed.   391;   Pollard  v.  Hagan,  3  How 
212,  11  L.   ed.  565;   Doe  v.  Braden 

16  How.  635,  14  L.  ed.  1090;  Mead< 
v.  United  States,  9  Wall.  691,  19  I 
ed.    687,    2    Ct.    of    01.    224;    Unite* 
States    v.    Lynde's   Heirs,    11    Wall 
632,   20   L.    ed.    230;    United    State 
v.  Texas,  162  U.  S.  1,  16  Sup.  Ct.  Rej 
725,  40  L.  ed.  867;    Gray  v.  Unite 
States,  21  Ct.  of  01.  340. 


APPENDIX  n.  755 

1834. 
CLAIMS  CONVENTION. 

Concluded  February  17,  1834;  ratification  advised  by  the  Senate 
May  13, 1834;  ratified  by  the  President;  ratifications  exchanged 
August  14, 1834;  proclaimed  November  1, 1834.  (Treaties  and 
Conventions,  1889,  p.  1023.) 

U.  S.  Treaties  1904,  p.  719;    8  Stats,  at  Large,  460. 

AKTICLES. 

I.  Indemnification  to  United  States.       IV.  List    of   claims. 
II.  Interest.  V.  Eatification. 

III.  Claims    renounced. 

1871. 
CLAIMS  AGREEMENT. 

Signed  February  12,  1871.     (U.  S.  Treaties  and  Conventions,  1889, 

p.  1025.) 

17  Stats,    at  Large,  839. 

This  agreement  provided  for  the  creation  of  a  mixed  commission 
to  determine  the  claims  of  American  citizens  against  Spain  for 
injuries  inflicted  in  the  "Ten  Years  War"  in  Cuba. 

1877. 
EXTRADITION  CONVENTION. 

i  Concluded  January  5, 1877 ;  ratification  advised  by  the  Senate  Feb- 
ruary 9,  1877 ;  ratified  by  the  President  February  14,  1877 ; 
ratifications  exchanged  February  21,  1877 ;  proclaimed  Feb- 
ruary 21, 1877.  (Treaties  and  Conventions,  1889,  p.  1027.) 

U.  S.  Treaties  1904,  p.  721;    19  Stats,  at  Large,  Treaties,  94. 

This  convention  of  twelve  articles  contained  the  usual  provisions 
'for  the  extradition  of  fugitives  from  justice. 


756  APPENDIX  II. 

1882. 
TRADEMARK  CONVENTION. 

Concluded  June  19, 1882;  ratification  advised  by  the  Senate  July  5, 
1882;  ratified  by  the  President  April  4,  1883;  ratifications  ex- 
changed April  19,  1883;  proclaimed  April  19,  1883.  (Treaties 
and  Conventions,  1889,  p.  1036.) 

U.  S.  Treaties  1904,  p.  722;    22  Stats,  at  Large,  979. 

This  convention  of  three  articles  contained  the  usual  reciprocal 
agreements  for  the  protection  of  trademarks  and  manufactured 
articles. 

1882. 
SUPPLEMENTARY   EXTRADITION   CONVENTION.1 

Concluded  August  7,  1882;  ratification  advised  by  the  Senate  Feb- 
ruary 27,  1883;  ratified  by  the  President  April  4,  1883;  ratifi- 
cations exchanged  April  19,  1883;  proclaimed  April  19, 
(Treaties  and  Conventions,  1889,  p.  1037.) 

U.  S.  Treaties  1904,  p.  722;    22  Stats,  at  Large,  991. 

"By  the  articles  of  this  supplementary  convention  to  the  Extra- 
dition Convention  of  1877,  additions  were  made  to  the  list  of 
extraditable  offenses,  and  an  agreement  made  for  the  temporary 
detention  of  criminals  and  the  co-operation  of  both  governments  to 
secure  the  arrest  and  delivery  of  the  criminals  demanded. 

1898. 
TREATY  OF  PEACE.2 

Concluded  at  Paris  December  10,  1898;  ratification  advised  by  the 
Senate  February  6, 1899;  ratified  by  the  President  February  6, 
1899;  ratifications  exchanged  April  11,  1899;  proclaimed  April 
11, 1899. 

U.  S.  Treaties  1904,  p.  722;   30  Stats,  at  Large,  1754. 

1  See  Oteiza  y  Cortes  v.  Jacobus,  Cortes,   42  Fed.  47 ;    Ex  parte  Oritz. 

136  U.  S.  330,  10  Sup.  Ct.  Eep.  1034,  100  Fed.   955. 

34  L.  ed.  464;  Castro  v.  De  Uriarte,  2  See  Dooley  v.  United  States,  182 

12    Fed.    250,    16    Fed.    93;    In    re  U.  S.  222,  21  Sup.  Ct.  Eep.  762,  45 


APPENDIX  II. 


757 


ARTICLES. 

I.  Relinquishment    of    Cuba.  X. 

II.  Cession  of  Porto  Rico,  Guam,  XT. 
etc. 

III.  Cession      of     Philippine     Isl-  XII. 

ancls. 

IV.  Spanish       trade       with      the       XIII. 

Philippines. 
V.  Return    of    Spanish    soldiers 

from    Manila;     evacuation        XIV. 

of  Philippines  and  Guam.  XV. 

VI.  Release  of  prisoners. 

VII.  Relinquishment  of  claims.  XVI. 

VIII.  Property      relinquished      and       XVII. 

ceded. 

IX.  Property  and  civil  rights  of 
persons  in  ceded  territory. 


Religious   freedom. 
Legal   rights    in   ceded   or    re- 
linquished   territory. 
Determination      of      pending 

judicial   proceedings. 
Privileges     of     copyrights    and 
patents  preserved  in  ceded 
territories. 
Consular  privileges. 
Mutual     privileges     of     ship- 
ping charges. 
Obligations    of    Cuba. 
Ratification. 


1900. 

PROTOCOL  WITH  SPAIN  EXTENDING  THE  PERIOD  DURING  WHICH 
SPANISH  SUBJECTS,  NATIVES  OF  THE  PHILIPPINE  ISLANDS,  MAY 
DECLARE  THEIR  INTENTION  TO  RETAIN  THEIR  SPANISH  NATION- 
ALITY. 

Concluded  March  29,  1900;  advice  and  consent  of  the  Senate  April 
27,  1900;  proclaimed  April  28,  1900. 

U.  S.  Treaties  1904,  p.  727;   31  Stats,  at  Large,  1881. 

ARTICLE. 
Extension. 


L.  ed.  1074,  183  U.  S.  151,  22  Sup. 
Ct.  Rep.  62,  46  L.  ed.  128;  Pepke 
v.  United  States,  183  U.  S.  176,  22 
Sup.  Ct.  Rep.  59,  46  L.  ed.  138;  De 
Lema  v.  Bidwell,  182  U.  S.  1,  21  Sup. 
Ct.  Rep.  743,  45  L.  ed.  1041 ;  Goetze  v. 
United  States,  182  U.  S.  221,  21  Sup. 
Ct.  Rep.  742,  45  L.  ed.  1065,  103  Fed. 
72;  Armstrong  v.  United  States,  182 
U.  S.  243,  21  Sup.  Ct.  Rep.  827,  45 
L.  ed.  1086;  Downes  v.  Bidwell,  182 


U.  S.  244,  21  Sup.  Ct.  Rep.  770,  45 
L.  ed.  1088;  Huus  v.  New  York  and 
Porto  Rico  S.  S.  Co.,  182  U.  S.  392, 
21  Sup.  Ct.  Rep.  827,  45  L.  ed. 
1146;  Grossman  v.  United  States, 
182  U.  S.  221,  21  Sup.  Ct.  Rep.  742, 
45  L.  ed.  1065;  Armstrong  v.  Bid- 
well,  124  Fed.  690;  De  Pass  v.  Bid- 
well,  124  Fed.  615;  American  Sugar 
R.  Co.  v.  Bidwell,  124  Fed.  677; 
Howell  v.  Bidwell,  124  Fed.  688. 


758  APPENDIX  n. 

1900. 
TREATY  FOR  CESSION  OF  OUTLYING  ISLANDS  OF  THE  PHILIPPINES. 

Concluded  November  7,  1900;  ratification  advised  by  Senate  Janu- 
ary 22,  1901;  ratified  by  the  President  January  30,  1901;  rati- 
fications exchanged  March  23, 1901;  proclaimed  March  23, 1901. 

U.  S.  Treaties  1904,  p.  728;    31  Stats,  at  Large,  1942. 

AETICLE. 

Kelinquishment  of  islands  to  the  United  States. 


1901. 

AGREEMENT  WITH  SPAIN  EXEMPTING  FROM  AUTHENTICATION  SIGNA- 
TURES ATTACHED  TO  LETTERS  ROGATORY  EXCHANGED  WITH 
PORTO  Rico,  THE  PHILIPPINE  ISLANDS,  AND  SPAIN. 

Concluded  August  7,  1901;  effective  November  28,  1901. 
U.  S.  Treaties  1904,  p.  729. 


1902. 
TREATY  OF  FRIENDSHIP  AND  GENERAL  RELATIONS. 

Concluded  at  Madrid  July  3, 1902;  ratification  advised  by  the  Sen- 
ate December  16,  1902;  ratified  by  the  President  February  6, 
1903;  ratifications  excJianged  April  14, 1903;  proclaimed  April 
20,  1903. 

U.  S.  Treaties  1904,  p.  732 ;    33  Stats,  at  Large,  pt.  2,  p.  2105. 


F    THE  A 

'ERSITY   j 


SRSITY 


I. 
II. 

III. 

IV. 
V. 

VI. 

VII. 
VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 


APPENDIX  II. 


AETICLES. 

Amity.  XVIII. 

Commerce;  navigation;  fa- 
vored  nation   treatment.  XIX. 

Disposition     of     real     and  XX. 

personal   property.  XXI. 

Eeligious  liberty. 

Exemptions      of      citizens  XXII. 

and    vessels.  XXIII. 

Access   to   courts;    favored          XXIV. 
nation  treatment.  XXV. 

Customs    duties.  XXVI. 

Mutual  privileges    of    ship- 
ping. XXVII. 

Coasting    trade. 

Shipwrecks.  XXVIII. 

Nationality   of  vessels. 

Diplomatic  privileges.  XXIX. 

Consular    officers. 

Consular  privileges.  XXX. 

Consular  exemptions.  XXXI. 

Testimony   by   consuls. 

Arms    and    flags    at    con- 
sulates. 


759 


Consular  offices  and  ar- 
chives. 

Acting  consular  officers. 

Vice-consuls    and    agents. 

Application  to  authorities 
by  consuls. 

Notarial  powers. 

Shipping  disputes. 

Deserters  from  ships. 

Damages  to  vessels  at  sea. 

Notice  of  decease  of  citi- 
zens. 

Kepresentation  of  minor 
heirs,  etc. 

Favored  nation  treatment 
of  consuls. 

Annulling  of  prior  treat- 
ies. 

Duration. 

Eatification. 


1902. 

AGREEMENT  BY  INTERCHANGE  OF  NOTES  WITH  SPAIN  AS  TO  RESTO- 
RATION OF  INTERNATIONAL  COPYRIGHT  AGREEMENT. 

Concluded  November  26,  1902. 

U.  8.  Treaties  1904,  p.  741.     The  proclamation  in  reference  to  copyrights  is 
dated  July  10,  1895,  29  Stats,  at  Large,  871. 


SWEDEN  AND  NORWAY. 

(See  NORWAY.) 
SWEDEN. 

1783. 
TREATY  OF  AMITY  AND  COMMERCE. 

Concluded  April  3,  1783;  ratified  by  the  Continental  Congress 
July  29,  1783;  proclaimed  by  Congress  September  25,  1783. 
(Treaties  and  Conventions,  1889,  p.  1042.) 

U.  S.  Treaties  1904,  p.  744;    8  Stats,  at  Large,  60. 


760 


APPENDIX   II. 


(This  treaty  terminated  by  its  own  limitations  in  1796;  certain 
articles  were  revived  by  the  Treaty  of  1816,  and  by  Article  XVII 
of  the  Treaty  of  1827. 


ARTICLES. 


I. 
II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 
XIII. 

XIV. 


(Peace  and  friendship. ) 

Most  favored  nation  privi- 
leges. 

(Privileges  to  Swedish  sub- 
jects in  United  States.) 

(Privileges  to  United  States 
citizens  in  Sweden.) 

Religious  freedom. 

Effects  of  deceased  persons. 

Commerce  in  case  of  war. 

Extent  of  freedom  of  com- 
merce. 

Contraband   goods. 

Goods   not   contraband. 

Ships'  papers  in  case  of 
war. 

Navigation  in  time  of  war. 

Detention  of  contraband 
goods,  etc. 

Goods  on  enemy 's  ships. 


XV.  Instructions    to    naval    ves- 
sels. 

XVI.  Bond  from  privateers. 
XVII.  Recaptured      ships;      embar- 
goes. 
XVIII.  Regulations   for    war    with 

common  enemy. 
XIX.  Prizes. 

XX.   (Shipwrecks.) 
XXI.  Asylum    for    ships    in    dis- 
tress. 

XXII.  Property   rights   in   case   of 
war. 

XXIII.  Letters   of  marque. 

XXIV.  (Shipping  privileges.) 
XXV.  Visit  of  war  vessels. 

XXVI.   (Consuls.) 
XXVII.  Ratification. 

Separate  article.     Duration. 


SEPARATE   ARTICLES. 


I.  Defense  of  ships  in   Sweden. 
II.  Defense     of     ships     in     United 

States. 

III.   (Mutual  protection  of  merchant 
vessels.) 


IV.  Right   to   trade. 
V.  Freedom  of  vessels  from  search. 


1816. 
TREATY  OF  AMITY  AND  COMMERCE. 

Concluded  September  4,  1816 ;  ratification  advised  by  the  Senate 
with  amendments  February  19,  1817 ;  ratified  by  the  President 
May  27,  1818;  ratifications  exchanged  September  25,  1818; 
proclaimed  December  31,  1818.  (Treaties  and  Conventions, 
1884*,  p.  1053.) 

IT.  S.  Treaties  1904,  p.  753;    8  Stats,  at  Large,  232. 

This  treaty  of  fourteen  articles  expired  by  its  own  limitations 
September  25,  1826,  and  was  replaced  by  the  Treaty  of  1827. 


APPENDIX   II.  761 


1827. 
TREATY  OP  COMMERCE  AND  NAVIGATION. 

Concluded  July  4,  1827 ;  ratification  advised  by  the  Senate  January 
7,  1828;  ratified  by  the  President;  ratifications  exchanged 
January  18,  1828;  proclaimed  January  19,  1828.  (Treaties 
and  Conventions,  1889,  p.  1058.) 

U.  S.  Treaties  1904,  p.  754;    8  Stats,  at  Large,  346. 

ARTICLES. 

I.  Freedom    of    commerce    and  XI.  Shipping  privileges. 

trade.  XII.  Discnarge  of  cargoes. 

II.  Shipping    dues.  XIII.  Consular  officers  and  powers. 

III.  No    discrimination     on     im-  XIV.  Deserters  from  ships. 

ports.  XV.  Shipwrecks. 

IV.  No    discrimination     on     ex-  XVI.  Quarantine. 

ports.  XVII.  Articles  of  former  treaty  re- 

V.  Trade  with  St.  Bartholomew.  vived. 

VI.  Coastwise    trade.  XVIII.  Blockade  rules. 

VII.  No     discrimination    in    pur-  XIX.  Duration. 

chases.  XX.  Eatification. 

VIII.  Tonnage,  etc.,  dues.  Separate       article.        Trade 

IX.  No   restriction   on   imports.  with   Finland. 
X.  Transit  privileges,  bounties, 
etc. 


1860. 
EXTRADITION  CONVENTION. 

Concluded  March  21,  1860;  ratification  advised  by  the  Senate  June 
26,  1860;  ratified  by  the  President  December  14,  1860;  ratifica- 
tions exchanged  December  20,  1860;  proclaimed  December  21, 
1860.  (Treaties  and  Conventions,  1889,  p.  1066.) 

U.  S.  Treaties  1904,  p.  761;    12  Stats,  at  Large,  1125. 

This  treaty  of  seven  articles  was  concluded  between  the  United 
States  and  Sweden  and  Norway.  It  was  superseded  as  to  Norway 
December  8,  1893,  by  the  Treaty  of  June  7,  1893,  and  as  to  Sweden 
April  17,  1893,  by  the  Treaty  of  January  14,  1893. 


762  APPENDIX  II. 

1869. 
NATURALIZATION  CONVENTION. 

Concluded  May  26,  1869;  ratification  advised  by  the  Senate  with 
amendment  December  9, 1870;  ratified  by  the  President  Decem- 
ber 17,  1870;  ratifications  exchanged  June  14,  1871;  exchange 
of  ratifications  consented  to  by  the  Senate  January  8,  1872; 
proclaimed  January  12,  1872.  (Treaties  and  Conventions, 
1889,  p.  1068.) 

U.  S.  Treaties  1904,  p.  761;    17  Stats,  at  Large,  809. 

ARTICLES.      . 

I.  Eecognition   of  naturalization.  IV.  Extradition    convention    contin- 
II.  Liability  for  prior  offenses.  ued. 

III.  Eestoration    to    former    citizen-  V.  Duration. 

ship.  VI.  Ratification. 

1893. 
EXTRADITION  TREATY. 

Concluded  January  14,  1893;  ratification  advised  by  the  Senate 
February  2,  1893;  ratified  by  the  President  February  8,  1893; 
ratifications  exchanged  March  18,  1893;  proclaimed  March  18, 
1893. 

IT.  S.  Treaties  1904,  p.  764;    27  Stats,  at  Large,  972. 

AETICLES. 

I.  Surrender    of    accused.  VIII.  Eestrictions  on  trials. 

II.  Extraditable  crimes.  IX.  Property  seized  with  fugitive. 

III.  Procedure.  X.  Persons     claimed     by     other 

IV.  Provisional  detention.  countries. 
V.  Nondelivery    of    citizens.  XI.  Expenses. 

VI.  Political    offenses.  XII.  Effect;   ratification. 

VII.  Limitation. 


APPENDIX  II.  763 


SWITZERLAND.1 

(Swiss  CONFEDERATION.) 

1847. 
CONVENTION  AS  TO  PROPERTY  RIGHTS. 

Concluded  May  18,  1847 ;  ratification  advised  ~by  the  Senate  April 
26,  1848;  ratified  by  the  President  April  29,  1848;  ratifications 
exchanged  May  3,  1848;  proclaimed  May  4,  1848.  (Treaties 
and  Conventions,  1889,  p.  1071.) 

U.  S.  Treaties  1904,  p.  768;   9  Stats,  at  Large,  Treaties,  100. 

This  convention  of  three  articles  is  superseded  by  the  Convention 
of  1850. 


1850. 
CONVENTION  OF  FRIENDSHIP,  COMMERCE,  AND  EXTRADITION. 

Concluded  November  25,  1850;  ratification  advised  by  the  Senate 
with  amendments  March  7,  1851;  ratified  by  the  President 
March  12,  1851;  ratification  again  advised  by  the  Senate  with 
amendment  May  29,  1854;  finally  ratified  by  the  President 
November  6,  1854;  ratifications  exchanged  November  8,  1855; 
proclaimed  November  9,  1855.  (Treaties  and  Conventions, 
1889,  p.  1072.) 

U.  S.  Treaties  1904,  p.  768;    11  Stats,  at  Large,  587. 

Note. — Notice  was  given  on  March  23,  1899,  of  the  intention  of  the  United 
States  to  arrest  the  operation  of  Articles  VIII  to  XII,  inclusive. 

Articles  XIII,  XIV,  XV,  XVI,  and  XVII  were  terminated  by  the  treaty 
concluded  May  14,  1900. 

1  See  Weiberg  v.  The  St.  Oloff,  2  Pet.  Adm.  428,  Fed.  Cas.  No.  17,357. 


764 


APPENDIX  II. 


AKTICLES. 


I.  Personal  and  property  privi- 
leges. 

II.  Civil  duties  and  immunities. 
III.  Keturn  of  citizens. 
IV.  Passports. 
V.  Eeal   and   personal   property 

rights. 

VI.  Civil   suits. 

VII.  Consular    officers    and    privi- 
leges. 

VIII.  Most  favored  nation  com- 
mercial privileges.  (Not 
in  force.) 

IX.  Export    and    import    duties. 
(Not  in  force.) 


X.  Future      commercial      privi- 
leges.    (Not  in  force.) 
XL  Differential  duties.     (Not  in 

force.) 
XII.  Shipping;  shipwrecks.     (Not 

in  force.) 

(Articles    XIII,    XIV,     XV, 
XVI,  and  XVII  relate  to 
extradition,  and  were  ter- 
minated    by     Extradition 
Treaty  of  1900.) 
XVIII.  Duration. 
XIX.  Eatification. 


1883. 

REGISTRATION  OF  TRADEMARKS. 

Dated  April  27,  1883,  and  May  14,  1883. 

U.  S.  Treaties  1904,  p.  772. 


1900. 

EXTRADITION  TREATY. 

Concluded  May  14,  1900;  ratified  by  Senate  June  5,  1900;  ratified 
by  President  February  25,  1901;  ratified  by  Switzerland  Jan- 
uary 21,  1901;  ratifications  exchanged  February  27,  1901; 
proclaimed  February  28,  1901. 

U.  S.  Treaties  1904,  p.  774;    31  Stats,  at  Large,  1928. 
AETICLES. 


I.  Delivery   of   accused. 
II.  Extraditable    crimes. 
III.  Attempts  to  commit  extradita- 
ble   crimes. 
IV.  Special    court. 

V.  Procedure. 
VI.  Provisional    detention. 
VII.  Political    offenses. 
VIII.  Limitations. 


IX.  Prior    offenses;     surrender   to 

third  state. 

X.  Extradition  deferred. 
XL  Persons     demanded     by     third 

state. 
XII.  Property  seized  with  fugitive. 

XIII.  Expenses. 

XIV.  Annulling   prior   treaty;    dura- 

tion;  ratification. 


APPENDIX  II.  765 


TEXAS. 

The  admission  of  Texas  into  the  United  States  December  29,  1845, 
rendered  the  treaties  concluded  in  1838  obsolete. 

1838. 
CLAIMS  CONVENTION. 

Concluded  April  11,  1838;  ratification  advised  by  the  Senate  June 
13,  1838;  ratified  by  the  President  June  21,  1838;  ratifications 
exchanged  July  6,  1838;  proclaimed  July  6,  1838.  (Treaties 
and  Conventions,  1889,  p.  1078.) 

U.  S.  Treaties  1904,  p.  779;    8  Stats,  at  Large,  510. 
By  this  treaty  Texas  agreed  to  pay  $11,750  in  settlement  of 
claims  of  citizens  of  the  United  States  for  the  capture  of  the  brigs 
' '  Pocket ' '  and  ' '  Durango, ' '  and  other  injuries. 

1838. 
BOUNDARY  CONVENTION. 

Concluded  April  25,  1838;  ratification  advised  by  the  Senate  May 
10,  1838;  ratified  by  the  President  October  4,  1838;  ratifica- 
tions exchanged  October  12, 1838;  proclaimed  October  13, 1838. 
(Treaties  and  Conventions,  1889,  p.  1079.) 

U.  S.  Treaties  1904,  p.  779;    8  Stats,  at  Large,  511. 
This  treaty  provided  for  a  commission  to  survey  and  mark  the 
boundary  between  the  United  States  and  Texas. 


TONGA. 

1886. 
TREATY  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  October  2,  1886 ;  ratification  advised  by  the  Senate,  with 
amendment,  January  19,  1888;  ratified  by  the  President  Feb- 
ruary 7,  1888;  ratifications  exchanged  August  1,  1888;  pro- 
claimed September  18, 1888.  (Treaties  and  Conventions,  1889, 
p.  1205.) 

U.  S.  Treaties  1904,  p.  780;    25  Stats,  at  Large,  1440. 


766 


APPENDIX  II. 


AKTICLES. 

I.  Amity.  VIII. 

II.  Most     favored     nation     privi-  IX. 

leges.  X. 

III.  Trade  privileges.  XI. 

IV.  Commerce  and  navigation  im-  XII. 

ports.  XIII. 

V.  Shipping  charges.  XIV. 

VI.  Coaling   station  in  Tonga.  XV. 
VII.  Privileges  to  steam  mail  ships. 


Whaling    and   fishing   ships. 
Personal   exemptions. 
Deserters  from  ships. 
Consular  officers. 
Consular  jurisdiction. 
Religious    freedom. 
Duration. 
Ratification. 


TRIPOLI. 

1796. 
TREATY  OF  PEACE  AND  FRIENDSHIP. 

Concluded  November  4,  1796;  ratification  advised  by  the  Senate 
June  7,  1797;  ratified  by  the  President  June  10,  1797 ;  pro- 
claimed June  10,  1797.  (Treaties  and  Conventions,  1889,  p. 
3081.) 

U.  S.  Treaties  1904,  p.  784;    8  Stats,  at  Large,  154. 

This  treaty  of  twelve  articles  was  superseded  by  the  Treaty  of 
1805. 

1805. 
TREATY  OF  PEACE  AND  AMITY. 

Concluded  June  4,  1805;  ratification  advised  by  the  Senate  April 
12,  1806;  ratified  by  the  President  (?) ;  ratifications  exchanged 
(?);  proclaimed  (?).  (Treaties  and  Conventions,  1889,  p. 
1084.) 

IT.  S.  Treaties  1904,  p.  784;    8  Stats,  at  Large,  214. 


APPENDIX  II. 


767 


AETICLES. 

I.  Peace,  friendship    and  com-  XI. 

merce. 

II.  Exchange    of   prisoners.  XII. 
III.  Withdrawal        of        United 

States  forces.  XIIL 

IV.  Neutral   rights.  XIV. 

V.  Liberation    of    captive    citi-  XV. 

zens.  XVI. 

VI.  Ships'    passports.  XVII. 

VII.  Purchase  of  prizes.  XVIII. 

VIII.  Asylum  for   supplies.  XIX. 

IX.  Shipwrecks.  XX. 
X.  Assistance  to  vessels  in  ter- 
ritorial waters. 


Most  favored  nation  com- 
mercial privileges. 

Consular  responsibility  in 
Tripoli. 

Salutes  to  naval  vessels. 

Religious  freedom,  etc. 

Settlement  of  disputes. 

Treatment    of   prisoners. 

Captured    vessels. 

Judicial  power  of  consul. 

Homicides,  etc. 

Estates  of  deceased  persons; 
ratification. 


TUNIS. 

[Treaties  with  Tunis  were  superseded  by  treaty  between  United 
States  and  France  of  May  9,  1904.] 

1797. 
TREATY  OF  AMITY,  COMMERCE,  AND  NAVIGATION. 

Concluded  August,  1797 ;  ratification  advised  ~by  the  Senate,  with 
amendments,  March  6,  1798;  alterations  concluded  March  26, 
1799 ;  ratification  again  advised  T)y  the  Senate  December  24, 
1799.  (Treaties  and  Conventions,  1889,  p.  1090.) 

U.  S.  Treaties  1904,  p.  790;    8  Stats,  at  Large,  157. 


AETICLES. 

I.  Amity.  Xin. 
II.  Kestoration  of  property  cap- 
tured. XIV. 

III.  Bights   of  vessels.  XV. 

IV.  Ships'  passports. 

V.  Ships   under   convoy.  XVI. 

VI.  Search    of    ships.  XVII. 

VII.  Vessels  purchased.  XVIII. 

VIII.  Asylum     for     supplies     and  XIX. 

shelter.  XX. 

IX.  Shipwrecks.  XXI. 

X.  Protection   of   ships   in   ter-  XXII. 

ritorial  waters.  XXIII. 
XI.  Salutes  to  naval  vessels. 
XII.  Trading    rights    and    privi- 
leges. 


Enemies'  subjects  serving  as 
sailors. 

Import  duties. 

Freedom  of  commerce;  pro- 
hibitions. 

Anchorage  charges. 

Consuls. 

Eesponsibility    for    debts. 

Effects  of  deceased  persons. 

Jurisdiction  of  consuls. 

Homicides,  etc. 

Civil    suits. 

Settlement  of  disputes. 


768  APPENDIX  II. 

1824.1 
CONVENTION  AMENDING  TREATY  OF  AUGUST,  1797. 

Concluded  February  24,  1824;  ratification  advised  by  the  Senate 
January  13,  1825;  ratified  by  the  President  January  21,  1825 ; 
proclaimed  January  21,  1825.  (Treaties  and  Conventions, 
1889,  p.  1096.) 

IT.  S.  Treaties  1904,  p.  795;    8  Stats,  at  Large,  298. 

(This  treaty  is  reprinted  in  the  treaty  volume  from  the  proclama- 
tion of  President  Monroe.) 

AETICLES. 

VI.  Search    of    ships;    freedom    of       XII.  Trading  rights   and  privileges. 

slaves.  XIV.  Most   favored  nation  commer- 

XI.  Salutes    to    naval    vessels.  cial   privileges. 


TWO  SICILIES. 

(See  ITALY.) 

1832. 
CLAIMS  CONVENTION. 

Concluded  October  14, 1832;  ratification  advised  by  the  Senate  Jan- 
uary 19, 1833;  ratified  by  the  President;  ratifications  exchanged 
June  8,  1833;  proclaimed  August  27,  1833.  (Treaties  and 
Conventions,  1889,  p.  1100.) 

U.  S.  Treaties  1904,  p.  799;    8  Stats,  at  Large,  442. 

This  convention  of  three  articles  provided  for  the  payment  of 
2,115,000  Neapolitan  ducats  for  the  seizure,  etc.,  of  United  States 
vessels  by  Murat  in  1809,  1810,  1811,  and  1812.  The  commission 
of  three  to  decide  on  the  distribution  of  the  indemnity  met  in 
Washington  September,  1833,  and  adjourned  March  17,  1835.  The 
awards  of  the  commission  amounted  to  $1,925,034.68. 

1  This  treaty  was  superseded  be-  (for  Bey  of  Tunis),  proclaimed  May 
tween  United  States  and  France  9,  1904. 


APPENDIX  II.  769 


1845. 
TREATY  OF  COMMERCE  AND  NAVIGATION. 

Concluded  December  1,  1845;  ratification  advised  ~by  the  Senate 
April  11,  1846;  ratified  by  the  President  April  14,  1846;  rati- 
fications exchanged  June  1,  1846;  proclaimed  July  24,  1846. 
(Treaties  and  Conventions,  1889,  p.  1102.) 

U.  S.  Treaties  1904,  p.  799;    9  Stats,  at  Large,  13. 

This  treaty  of  thirteen  articles  was  superseded  by  the  convention 
of  October  1,  1855. 

1855. 
CONVENTION  AS  TO  RIGHTS  OF  NEUTRALS  AT  SEA. 

Concluded  January  13,  1855;  ratification  advised  by  the  Senate 
March  3,  1855;  ratified  by  the  President  March  20,  1855;  rati- 
fications exchanged  July  14,  1855 ;  proclaimed  July  16,  1855. 
(Treaties  and  Conventions,  1889,  p.  1107.) 

U.  S.  Treaties  1904,  p.  799;    11  Stats,  at  Large,  607. 

This  convention  of  three  articles  was  superseded  by  the  Treaty  of 
1871  with  Italy. 

1855. 

CONVENTION  OF  AMITY,  COMMERCE  AND  NAVIGATION,  AND  EXTRA- 
DITION. 

Concluded  October  1,  1855 ;  ratification  advised  by  the  Senate  with 
amendments  August  13, 1856;  ratified  by  the  President  August 
20, 1856;  ratifications  exchanged  November  7, 1856;  proclaimed 
December  10, 1856.  (Treaties  and  Conventions,  1889,  p.  1109.) 

U.  S.  Treaties  1904,  p.  800;    11  Stats,  at  Large,  639. 

This  convention  became  obsolete  by  the  consolidation  of  the  Two 
Sicilies  with  the  Kingdom  of  Italy,  1861.  See  Treaty  of  March  23, 
1868,  and  Treaty  of  February  26,  1871. 

Treaties — 49 


770 


APPENDIX  II. 


VENEZUELA. 

1836. 
TREATY  OF  PEACE,  AMITY,  COMMERCE  AND  NAVIGATION. 

Concluded  January  20,  1836;  ratification  advised  ~by  the  Senatt 
March  23,  1836;  ratified  ~by  the  President  April  20,  1836;  rat\ 
fications  exchanged  May  31,  1836;  proclaimed  June  30,  183t 
(Treaties  and  Conventions,  1889,  p.  1119.) 

U.  S.  Treaties  1904,  p.  801;    8  Stats,  at  Large,  466. 

Pursuant  to  a  notice  from  the  Government  of  Venezuela,  thi 
convention  of  thirty-four  articles  terminated  January  3,  1851. 


1859. 
CLAIMS  CONVENTION. 

Concluded  January  14,  1859;  ratification  advised  by  the  Senat 
February  21, 1861;  ratified  by  the  President  February  26, 186: 
(Treaties  and  Conventions,  1889,  p.  1129.) 

U.  S.  Treaties  1904,  p.  801;    17  Stats,  at  Large,  803. 

By  this  convention  the  claims  of  United  States  citizens  again; 
Venezuela,  amounting  to  $130,000,  for  damages  for  being  evicl 
from  Aves  Island  were  acknowledged  and  payment  provided  foi 


1860. 
TREATY  OF  AMITY,  COMMERCE  AND  NAVIGATION,  AND  EXTRADITION. 

Concluded  August  27, 1860;  ratification  advised  by  the  Senate  Feb- 
ruary 12,  1861;  ratified  by  the  President  February  25,  1861; 
ratifications  exchanged  August  9,  1861;  proclaimed  September 
25,  1861.  (Treaties  and  Conventions,  1889,  p.  1130.) 

U.  S.  Treaties  1904,  p.  801;    12  Stats,  at  Large,  1143. 

This  treaty  of  thirty-two  articles  terminated  October  22,  1870, 
pursuant  to  notice  from  Venezuela. 


APPENDIX  II.  771 

1866. 
CLAIMS  CONVENTION. 

Concluded  April  25,  1866 ;  ratification  advised  by  the  Senate  July 
5,  1866;  ratified  ~by  the  President  August  8,  1866 ;  ratifications 
exchanged  April  17, 1867 ;  proclaimed  May  29, 1867.  (Treaties 
and  Conventions,  1889,  p.  1140.) 

TJ.  S.  Treaties  1904,  p.  801;    16  Stats,  at  Large,  713. 

The  claims  of  citizens  of  the  United  States  against  Venezuela 
were  submitted  by  this  convention  to  two  commissioners  and  an 
umpire,  who  met  at  Caracas,  Venezuela,  August  30,  1867,  and  ad- 
journed August  3,  1868,  awarding  $1,253,310.30  against  Venezuela. 

1885. 
CLAIMS  CONVENTION. 

Concluded  December  5,  1885;  ratification  advised  by  the  Senate 
with  amendments  April  15,  1886;  ratified  by  the  President 
August  7,  1888;  ratifications  exchanged  June  3,  1889;  pro- 
claimed June  4,  1889. 

U.  S.  Treaties  1904,  p.  802;   28  Stats,  at  Large,  1053. 

1888. 

CONVENTION  TO  REMOVE  DOUBTS  AS  TO  THE  MEANING  OF  THE   CON- 
VENTION OP  1885. 

Concluded  March  15, 1888;  ratification  advised  by  the  Senate  June 
18, 1888;  ratified  by  the  President  August  7, 1888;  ratifications 
exchanged  June  3,  1889;  proclaimed  June  4,  1889. 

U.  S.  Treaties  1904,  p.  802;   28  Stats,  at  Large,  1064. 

1888. 

ONVENTION  EXTENDING  THE  TIME  FOB  RATIFICATION  OF  THE  CON- 
VENTION OF  1885. 

included  October  5,  1888;  ratification  advised  by  the  Senate 
December  5,  1888;  ratified  by  the  President  January  30,  1889  • 
ratifications  exchanged  June  3,  1889;  proclaimed  June  4,  1889 

U.  S.  Treaties  1904,  p.  802;    28  Stats,  at  Large,  1067. 


— cu 


772  APPENDIX  II. 

t 

The  commission  authorized  by  the  three  above  conventions  to 
reopen  and  decide  the  awards  under  the  Treaty  of  1866  was  organ- 
ized in  Washington,  D.  C.,  September  3,  1889,  and  adjourned  Sep- 
tember 2,  1890,  awarding  claims  against  Venezuela  amounting  to 
$980,572.60. 

1892. 
CLAIMS  CONVENTION. 

Concluded  January  19,  1892;  ratification  advised  by  the  Senate 
March  17,  1892;  ratified  by  the  President  July  2,  1894;  ratifi 
cations  exchanged  July  28,  1894;  proclaimed  July  30,  189- 
U.  S.  Treaties  1904,  p.  803;    28  Stats,  at  Large,  1183. 

By  this  convention  the  claim  of  the  Venezuelan  Steam  Tran 
portation  Company  against  Venezuela  was  referred  to  the  arbitra 
tion-of  two  commissioners  and  an  umpire  who  rendered  an  awar 
of  $141,800. 

1903. 

PROTOCOL  WITH  VENEZUELA  SUBMITTING  TO  ARBITRATION  CLAIM 
AGAINST  VENEZUELA. 

Concluded  February  17,  1903. 
U.  S.  Treaties  1904,  p.  803. 

AETICLES. 

I.  Commission;    decision.  IV.  Compensation. 

II.  Basis    of   decision.  V.  Source  of  payment. 

III.  Eecord.  VI.  Prompt    payment. 


WtiRTTEMBERG. 

(See  GERMAN  EMPIRE.) 
1844. 

CONVENTION  ABOLISHING  DROIT  D'AUBAINE  AND  TAXES  ON  EM 

GRATION. 

Concluded  April  10,  1844;  ratification  advised  by  the  Senate  Jun 
12,  1844;  ratified  by  the  President  June  22,  1844;  ratifications 
exchanged  October  3,  1844;  proclaimed  December  16,  1844 
(Treaties  and  Conventions,  1889,  p.  1144.) 

U.  S.  Treaties  1904,  p.  806;    8  Stats,  at  Large,  588. 


APPENDIX  II.  773 

ARTICLES. 

I.  Taxes   abolished.  V.  Civil  suits. 

II.  Disposal    of    real    property.  VI.  Extent  of  convention. 

III.  Disposal   of   personal   property.       VII.  Eatification. 
IV.  Property  of  absent  heir*. 

1853. 
EXTRADITION. 

The  King  of  WiirtteEiberg,  October  13,  1853,  acceded  to  the 
extradition  Treaty  of  1852  with  Prussia  and  the  states  of  the  Ger- 
manic Confederation. 

U.  S.  Treaties  1904,  p.  807;    10  Stats,  at  Large,  105. 

1868. 

CONVENTION  AS  TO  NATURALIZATION  AND  EXTRADITION. 

Concluded  July  27,  1868;  ratification  advised  by  the  Senate  April 
12,  1869;  ratified  ~by  the  President  April  18,  1869;  ratifications 
exchanged  August  17,  1869;  exchange  of  ratifications  con- 
sented to  by  the  Senate  March  2,  1870;  proclaimed  March  7, 
1870.  (Treaties  and  Conventions,  1889,  p.  1146.) 

U.  S.  Treaties  1904,  p.  808;    16  Stats,  at  Large,  735.  " 

ARTICLES. 

I.  Naturalization   recognized.  IV.  Renunciation   of   naturalization. 

II.  Liability  for  prior  offenses.  V.  Duration. 

II.  Extradition  treaty  renewed.  VI.  Eatification. 


ZANZIBAR. 

(See  MUSCAT.) 

1886. 

TREATY  AS  TO  DUTIES  ON  LIQUORS  AND  CONSULAR  POWERS. 
Concluded  July  3,  1886;  ratification  advised  by  the  Senate,  with 
amendments,  April  12,  1888;  ratified  by  the  President  April 
20,  1888;  ratifications  exchanged  June  29,  1888;  proclaimed 
August  17,  1888.     (Treaties  and  Conventions,  1889,  p.  1209.) 
U.  S.  Treaties  1904,  p.  811;    25  Stats,  at  Large,  1438. 

ARTICLES. 

I.  Duty  on  liquors.  III.  Ratification. 

I.  Consular  powers. 


APPENDIX  ill. 


INTERNATIONAL  CONVENTIONS  AND  ACTS 

TO  WHICH  THE  UNITED  STATES 

IS  A  PARTY. 


1864. 

AMELIORATION  OP  THE  CONDITION  OF  THE  WOUNDED  IN  TIME  OF 

WAR. 

Concluded  at  Geneva,  Switzerland,  August  22,  164;  ratifications 
exchanged  by  original  signatories  June  22,  1865;  adhesion  de- 
clared by  the  President  March  1,  1882;  accession  advised  by 
the  Senate  March  16,  1882;  adhesion  accepted  by  the  Swiss 
Confederation  June  9,  1882;  proclaimed  July  26,  1882. 
(Treaties  and  Conventions,  1889,  p.  1150.) 

U.  S.  Treaties  1904,  p.  815;    22  Stats,  at  Large,  940. 

(The  President's  ratification  of  the  act  of  accession,  as  trans- 
mitted to  Berne  and  exchanged  for  the  ratifications  of  the  other 
signatory  and  adhesory  powers,  embraces  the  French  text  of  the 
convention  of  August  22,  1864,  and  the  additional  articles  of  Oc- 
tober 20,  1868.  The  French  text  is,  therefore,  for  all  international 
purposes,  the  standard  one.  The  text  printed  in  the  treaty  volumes 
is  from  the  proclamation  of  the  President. 

The  adhesion  of  the  following  states  has  been  communicated: 
Sweden  and  Norway,  December  13,  1864;  Greece,  January  5-17, 
1865;  Great  Britain,  February  18,  1865;  Mecklenburg-Schwerin, 
March  9,  1865 ;  Turkey,  July  5,  1865 ;  Wiirttemberg,  June  2,  1866 ; 
Hesse,  June  22,  1866;  Bavaria,  June  30,  1866;  Austria,  July  21, 
1866 ;  Portugal,  August  9,  1866 ;  Saxony,  October  25,  1866 ;  Russia, 
May  10-22,  1867;  Persia,  December  5,  1874;  Roumania,  November 
18-30,  1874 ;  Salvador,  December  30,  1874 ;  Montenegro,  November 

(775) 


776  APPENDIX   III. 

17-29,  1875;  Servia,  March  24,  1876;  Bolivia,  October  16,  1879; 
Chile,  November  15,  1879 ;  Argentine  Republic,  November  25,  1879 ; 
Peru,  April  22,  1880;  Bulgaria,  May  27,  1884;  Japan,  June  11, 
1886 ;  Kongo  Free  State,  January  25,  1889 ;  Venezuela,  August  2, 
1894;  Uruguay,  June  20,  1900;  Korea,  January  8,  1903;  Guate- 
mala, April  13,  1903.) 

AKTICLES. 

I.  Neutrality    of    ambulances    and  VI.  Care    of   sick    and    wounded; 

hospitals.  evacuations. 

II.  Neutrality   of   hospital   employ-  VII.  Flag  and  arm-badge. 

ees.  VIII.  Regulation  of  details  of  exe- 

III.  Extent  of  neutrality.  cution. 

IV.  Equipment.  IX.  Accession   of   other   countries. 
V.  Neutrality    of    persons    caring  X.  Ratification. 

for  the  wounded. 


1868. 

(In  the  proclamation  of  the  foregoing  convention  concluded  Octo- 
ber 20,  1868,  the  President  inserted  the  certain  additional  articles, 
the  ratification  of  which  had  not  been  exchanged  by  the  signatory 
parties.  Although  not  in  force  as  a  treaty,  they  are  printed  in  the 
treaty  volume,  as  the  Senate  advised  and  consented  to  their  ratifica- 
tion at  the  same  time  with  the  convention  of  August  22,  1864.) 

IT.  S.  Treaties  1904,  p.  818. 


1875. 
INTERNATIONAL  BUREAU  OF  WEIGHTS  AND  MEASURES. 

Concluded  at  Paris  May  20,  1875;  ratification  advised  by  the 
Senate  May  15,  1878;  ratified  by  the  President  May  28,  1878; 
ratifications  exchanged  August  2,  1878;  proclaimed  September 
27,  1878.  (Treaties  and  Conventions,  1889,  p.  1157.) 

U.  S.  Treaties  1904,  p.  823;    20  Stats,  at  Large,  709. 

(The  treaty  submitted  to  the  Senate  and  attached  to  the  proclama- 
tion is  in  the  French  language.) 


APPENDIX    III. 


777 


I.  International        Bureau 

Weights   and    Measures    es- 
tablished. 

II.  Special  building. 
III.  International  committee. 
IV.  General   conferences. 

V.  Regulations. 
VI.  Duties  of  the  bureau. 
VII.  Bureau  officials. 


ARTICLES. 

of      VIII.  Prototypes  of  meter  and  kilo- 
gram. 
IX.  Expenses. 

X.  Contributions. 
XI.  Contributions    from    acceding 

countries. 

XII.  Future    modifications* 
XIII.  Duration. 
XIV.  Ratification. 


1883. 

CONVENTION  FOB  INTERNATIONAL  PROTECTION  OF  INDUSTRIAL  PROP- 
ERTY. 

Concluded  at  Paris  March  20,  1883;  adhesion  advised  by  the  Sen- 
ate March  2,  1887 ;  ratified  by  the  President  March  29,  1887; 
accession  announced  to  Swiss  Confederation  May  30,  1887; 
proclaimed  June  11,  1887.  (Treaties  and  Conventions,  1889, 
p.  1168.) 

U.  S.  Treaties  1904,  p.  834;   25  Stats,  at  Large,  1372. 
(The  original  Convention  is  in  the  French  language.) 


ARTICLES. 

I.  Union  for  protection  of  indus-  XI. 

trial  property  formed. 

II.  Mutual  protection  of  patents,  XII. 

trademarks,     and     commer- 
cial names.  XIII. 

III.  Protection  of  alien  residents. 

IV.  Protection  to  applicants.  XIV. 
V.  Introduction    by    patentee    of  XV. 

articles    patented   in   other 
countries.  XVI. 

VI.  Deposit  of  trademarks.  XVII. 

VII.  Articles  protected.  XVIII. 

VHI.  Commercial    names    protected.          XIX. 
IX.  Seizure  of  unlawfully  marked 

goods. 

X.  Articles  with  false  place  of  ori- 
gin. 


Temporary  protection  to  ar- 
ticles at  expositions. 

Central  depot  of  informa- 
tion. 

International  bureau  estab- 
lished. 

International   conferences. 

Special  diplomatic  conven- 
tions. 

Adhesion  of  other  states. 

Laws  to  be  enacted. 

Duration. 

Ratification. 

Protocol. 


778  APPENDIX  III. 

1891. 
SUPPLEMENTARY  CONVENTION. 

Concluded  at  Madrid  April  15,  1891;  ratification  advised  by  the 
Senate  March  2,  1892;  ratified  by  the  President  March  30, 
1892;  ratifications  exchanged  June  15,  1892;  proclaimed  June 
22,  1892. 

IT.  S.  Treaties  1904,  p.  842 ;    27  Stats,  at  Large,  958. 

ARTICLES. 

I.  Expenses     of    International     Bu-      II.  Ratification;    duration, 
reau. 


1900. 

ADDITIONAL  ACT  CONCLUDED  AT  BRUSSELS  FOR  THE  PROTECTION  OF 
INDUSTRIAL  PROPERTY. 

Concluded  December  14,  1900;  ratification  advised  by  Senate 
March  7,  1901;  ratified  by  President  April  16,  1901;  ratifica- 
tions deposited  at  Brussels  May  3,  1901;  proclaimed  August 
25,  1902. 

U.  S.  Treaties  1904,  p.  843;   32  Stats,  at  Large,  1930. 

• 

AETICLES. 

I.  Modification        of        convention      II.  Addition  to  final  protocol. 
March  20,  1883.  III.  Duration;    ratification. 


1884. 
CONVENTION  FOR  PROTECTION  OF  SUBMARINE  CABLES. 

Concluded  March  14,  1884;  ratification  advised  by  the  Senate 
June  12,  1884;  ratified  by  the  President  January  26,  1885; 
ratifications  exchanged  April  16,  1885;  proclaimed  May  22, 
1885.  (Treaties  and  Conventions,  1889,  p.  1176.) 

U.  S.  Treaties  1904,  p.  848;    24  Stats,  at  Large,  989. 
(The  original  is  in  the  French  language.) 


APPENDIX    III.  779 


AETICLES. 

I.  Application   of   convention.  XI.  Trials. 

II.  Punishment  for  injuries  to  ca-  XII.  Laws  to  be  enacted. 

bles-  XIII.  Communication     of      legisla- 

III.  Requirements    for    cable    lay-  tion. 

ing.  XIV.  Adhesion  of  other  states. 

IV.  Payment  for  repairs.  XV.  Belligerent     action     not     af- 
V.  Eules  for  ships  laying  cables.  feeted. 

VI.  Vessels  to  avoid  cables.  XVI.  Operation;    duration. 

VII.  Losses  from  cables.  XVII.  Ratification. 

VIH.  Jurisdiction  of  courts.  Additional    article.      British 

IX.  Prosecution  for  infractions.  colonies. 
X.  Evidence  of  violations. 


1886. 

DECLARATION  RESPECTING  THE  INTERPRETATION  OF  ARTICLES  II  AND 
IV  OP  THE  CONVENTION  OP  MARCH  14,  1884,  FOR  THE  PROTEC- 
TION OF  SUBMARINE  CABLES. 

Signed  at  Paris  December  1,  1886;  ratification  advised  by  the  Sen- 
ate February  20,  1888;  ratified  by  the  President  March  1, 
1888;  'proclaimed  May  1,  1888.  (Treaties  and  Conventions, 
1889,  p.  1184.) 

U.  S.  Treaties  1904,  p.  855;   25  Stats,  at  Large,  1425. 


1887. 

FINAL  PROTOCOL  OF  AGREEMENT  BETWEEN  THE  UNITED  STATES  OF 
AMERICA  AND  OTHER  POWERS  FIXING  MAY  IST,  1888,  AS  THE 
DATE  OF  EFFECT  OP  THE  CONVENTION  CONCLUDED  AT  PARIS 
MARCH  14,  1884,  FOR  THE  PROTECTION  OF  SUBMARINE  CABLES. 

Signed  at  Paris  July  7,  1887;  ratification  advised  by  the  Senate 
February  20,  1888;  ratified  by  the  President  March  1,  1888; 
proclaimed  May  1,  1888.  (Treaties  and  Conventions,  1889, 
p.  1184.) 

U.  S.  Treaties  1904,  p.  856;   25  Stats,  at  Large,  1425. 


780 


•  APPENDIX   III. 


1886. 

CONVENTION  FOR  INTERNATIONAL  EXCHANGE  OF   OFFICIAL  DOCU- 
MENTS, SCIENTIFIC  AND  LITERARY  PUBLICATIONS. 

Concluded  at  Brussels  March  15,  1886;  ratification  advised  ~by  the 
Senate  June  18, 1888;  ratified  by  the  President  July  19,  1888; 
ratifications  exchanged  January  14,  1889;  proclaimed  Jan- 
uary 15,  1889. 

U.  S.  Treaties  1904,  p.  857;   25  Stats,  at  Large,  1465. 

(The  text  in  the  treaty  volume  published  by  the  Government  is 
reprinted  from  the  translation  made  in  the  Department  of  State 
and  proclaimed  by  the  President  with  the  original  treaty,  which 
is  in  the  French  language.) 


I.  Bureaus  of  exchanges  to  be  es- 
tablished. 
II.  Publications   to   be    exchanged. 

III.  Lists  to  be  printed. 

IV.  Number  of  copies. 

V.  Transmission  of  documents. 


AETICLES. 

VI.  Expense  of  transmittal. 
VII.  Publications   of  learned   asso- 
ciations. 

VIII.  Application  of  convention. 

IX.  Adhesion  of  other  states. 

X.  Eatifications;    duration. 


1886. 

CONVENTION  FOR  THE  IMMEDIATE  EXCHANGE  OF  OFFICIAL  JOURNALS, 
PARLIAMENTARY  ANNALS,  AND  DOCUMENTS. 

Concluded  at  Brussels  March  15,  1886;  ratification  advised  by  the 
Senate  June  18,  1888;  ratified  by  the  President  July  19,  1888; 
ratifications  exchanged  January  14,  1889;  proclaimed  Jan- 
uary 15,  1889. 

U.  S.  Treaties  1904,  p.  859;    25  Stats,  at  Large,  1469. 


AETICLES. 
exchange    of    official        II.  Adhesion  of  other  states. 


T.  Immediate 

journals,  parliamentary  annals, 
documents. 


III.  Eatification;    duration. 


APPENDIX   III.  781 

1890. 
GENERAL  ACT  FOR  THE  REPRESSION  OF  AFRICAN  SLAVE  TRADE. 

Signed  July  2,  1890;  ratification  advised  by  the  Senate  January 
11,  1892;  ratified  by  the  President  January  19,  1892;  rati- 
fications deposited  with  Belgian  Government  February  2, 1892; 
proclaimed  April  2,  1892. 

U.  S.  Treaties  1904,  p.  861;    27  Stats,  at  Large,  886. 
(The  original  of  this  treaty  is  in  the  French  language  and  the 
text  given  in  the  volumes  published  by  the  Government  is  from  the 
translation  submitted  to  the  Senate  and  attached  to  the  proclama- 
tion.) 

AETICLES. 

CHAPTER  I. — Slave-trade  countries. — Measures  to  be  taken  in  the  places  of  origin. 
I.  Measures     to    counteract  IX.  Eegulations    for    use    of 

slave  trade.  firearms. 

II.  Duties  of  stations,  cruis-  X.  Transit  of  arms  and  am- 

ers    and  posts.  munition. 

III.  Support  of  powers.  XI.  Information    to    be    fur- 

IV.  National  associations.  nished. 

V.  Legislation   to   be   enact-  XII.  Legislation  to  punish  of- 

ed.  fenders. 

VI.  Eeturn        of        liberated  XIII.  Prevention    of    introduc- 

slaves.  tion  of  firearms. 
VII.  Protection      of     fugitive  XIV.  Duration  of  firearms  pro- 
slaves,  visions. 
VIII.  Importation    of    firearms 
prohibited. 

CHAPTER  II. — Caravan   routes  and  transportation  of  slaves  by  land. 

XV.  Stoppage  of  convoys.  XVIII.  Care  of  liberated    slaves. 

XVI.  Posts  on  caravan  routes.  XIX.  Punishments. 

XVII.  Prevention  of  sales,   etc. 

CHAPTER  III. — Eepression  of  slave  trade  by  sea. 

Section  I. — General  provisions. 

XX.  Agreement  of  powers.  XXVI.  Exchange      of     informa- 

XXI.  Maritime  zone.  tion. 

XXII.  Eight  of  search,  etc.  XXVII.  International    Bureau    at 

XXIII.  Vessels    liable  to  search,  Zanzibar. 

etc.  XXVIII.  Slaves  escaping  to   ships 

XXIV.  Effect  of  present  conven-  of  war. 

tions.  XXIX.  Eelease  of  slaves  on  na- 

XXV.  Unlawful  use  of  flag.  tive  vessels. 


782  APPENDIX   III. 

Section  II. — Regulations  concerning  the  use  of  the  flags  and  supervision  ~by 

cruisers. 

1.  Eules  for  granting  the  flag  to  native  vessels,  and  as  to  crew  lists  and  mani- 
fests of  black  passengers  on  board. 

XXX.  Control  over  native  ves-  XXXVI.  Carriage    of    negro    pas- 

sels.  sengers. 

XXXI.  Definition  of  native  ves-  XXXVII.  Entry  of  vessels. 

sels.  XXXVIII.  Negro  passengers  not  al- 

XXXII.  Native       vessels      which  lowed    on    native     ves- 

may  carry  flag.  sels. 

XXXin.  Eenewal   of   authority.  XXXIX.  Vessels  excepted. 

XXXIV.  Act  of  authority.  XL.  Forfeiture  of  license. 

XXXV.  Crew  lists.  XLI.  Forms  to  be  issued. 

2. — The  stopping  of  suspected  vessels. 

XLII.  Examination    of    papers.  XL VII.  Eeport  of  detentions. 

XLIII.  Boarding.  XLV3JL  Communication  to   Inter- 

XLIV.  Papers  to  be  examined.  national  Bureau. 

XLV.  Examination  of  cargo.  XLIX.  Disposal    of    seized    ves- 

XLVI.  Minute  of  boarding  offi-  gels. 
cer. 

3. — Of  the  examination  and  trial  of  vessels  seized. 

L.  Trials.  LVI.  Trials. 

LI.  Disposal  of  arrested  ves-  LVII.  Summary  proceedings. 

sels.  LVUI.  Eelease  of  innocent  ves- 

LII.  Result    of    condemnation.  sels;    damages. 

LIII.  Indemnity  for  illegal  ar-  LIX.  Penalties. 

rests.  LX.  Special  tribunals. 
LIV.  Arbitration    of    disputed  LXI.  Communication      of      in- 
decisions, structions. 
LV.  Choice  of  arbitrators. 


CHAPTER  IV. — Countries  to  which  slaves  are  sent,  whose  institutions  recognize 
the  exi-stence  of  domestic  slavery. 

LXII.  Prohibition       of       slave  LXVIII.  Turkish  law. 

trade.  LXIX.  Assistance    by    Shah    of 

LXUI.  Disposition    of    liberated  Persia. 

slaves.  LXX.  Assistance  by  Sultan  of 

LXIV.  Freedom       of       fugitive  Zanzibar. 

slaves.  LXXI.  Assistance   of  diplomatic 

LXV.  Sales  declared  void.  and  consular  officers. 

LXVI.  Examination     of     native  LXXIL  Liberation  office. 

vessels.  LXXIIL  Exchange   of   statistics. 
LXVIL  Penal  punishments. 


APPENDIX   III.  783 

CHAPTER  V.— Institutions  intended  to  insure  the  execution  of  the  general  act. 

Section  I. — Of  the  international  maritime  office. 
LXXIV.  International      office     at        LXXVII.  Objects. 

Zanzibar.  LXXVin.  Archives;       translations. 

LXXV.  Organization.  LXIX.  Branch  offices. 

LXXVI.  Expenses.  LXXX.  Annual  reports. 

Section  II. — Of  the  exchange  between  the  Governments  of  documents  and  in- 
formation relative  to  the  slave  trade. 

LXXXI.    Exchange  of  information.       LXXXIV.  Publications. 
LXXXII.  Central  exchange  office.  LXXXV.  Expenses. 

LXXXIII.  Reports     from     Zanzibar 
office. 

Section  III. — Of  the  protection  of  liberated  slaves. 
LXXXVI.  Offices      for      liberating      LXXXVUL  Refuge  for  women  and 

slaves.  children. 

LXXXVII.  Registry  of  releases.  LXXXIX.  Protection      of      freed 

slaves. 

CHAPTER  VI. — Measures  to  restrict  the  traffic  in  spirituous  liquors. 

XC.  Prohibited  zone.  XC3H.  Excise  duty. 

XCL  Prohibition  of  importa-  XCIV.  Prevention      of      intro- 

tion      and      manufac-  duction  of  liquors, 

ture.  XCV.  Information  to  be  com- 

XCII.  Import  duty  in  certain  municated. 
localities. 

CHAPTER  VII. — Final  provisions. 

XCVI.  Contrary        stipulations  XCIX.  Ratification. 

repealed.  C.  Duration. 

XCVII.  Modifications.  Protocol. 

XCVIII.  Adhesion  of  powers. 

1899. 

ADHESION  OF  THE  UNITED  STATES  TO  THE  CONVENTION  SIGNED  AT 
BRUSSELS,  JUNE  8,  1889,  BY  THE  PLENIPOTENTIARIES  OF  CER- 
TAIN POWERS  FOR  THE  EEGULATION  OF  THE  IMPORTATION  OF 
SPIRITUOUS  LIQUORS  INTO  CERTAIN  REGIONS  OF  AFRICA. 

Concluded  June  8,  1899;  adhesion  advised  by  Senate  December  14, 
1900;  declaration  of  adhesion  by  President  February  1,  1901; 
proclaimed  February  6,  1901. 

U.  S.  Treaties  1904,  p.  888;  31  Stats,  at  Large,  1915. 


784  APPENDIX    III. 


AETICLES. 

I.  Import  duty.  IV.  Eatification. 

II.  Excise  duty.  V.  Effect. 

III.  Adhesion  of  powers. 


1890. 

CONVENTION  CONCERNING  THE  FORMATION  OF  AN  INTERNATIONAL 
UNION  FOR  THE  PUBLICATION  OF  CUSTOMS  TARIFFS. 

Signed  at  Brussels  July  5,  1890;  ratification  advised  by  the  Sen- 
ate December  13, 1890;  ratified  by  the  President  December  17, 
1890;  proclaimed  December  17,  1890. 

U.  S.  Treaties  1904,  p.  891;   26  Stats,  at  Large,  1518. 

AETICLES. 

I.  International    Union    formed.  XI.  Assignment  of  quotas. 
II.  Object.  XII.  Official  publications  to  be  fur- 
Ill.  International  Bureau.  nished  Bureau. 
IV.  Bulletin  to  be  published.  XIII.  Eegulations  to  be  established. 
V.  Personnel  of  Bureau.  XIV.  Accession  of  other  states. 
VI.  Language  to  be  used.  XV.  Duration,  additions. 
VII.  Annual  reports.  Eegulations. 
VIII.  Expenditures.  Final  declarations. 
IX.  Quotas  of  contracting  states. 
X.  Eeduction    to     certain    coun- 
tries. 

1901 

FINAL  PROTOCOL  ENTERED  INTO  BETWEEN  THE  PLENIPOTENTIARIES 
OF  VARIOUS  POWERS  AT  THE  CONCLUSION  OF  THE  SO-CALLED 
''BOXER"  TROUBLES  IN  1900 

Concluded  at  Peking,  Septemb<r  7,  1901.     (Appendix,  For.  Rel. 

U.  S,  1901.) 

U.  S.  Treaies  1904,  p.  900. 


iPPENDIX   III.  785 

AETICLES. 

I.  (a)  Assassination   of   German  VI.  Indemnity;  payment. 

Minister.  VII.  Legation  quarter, 

(ft)   Erection  of  monument.  VIII.  Eazing  of  forts. 

II.  (a)  Punishment.  IX.  Points   occupied. 

(fe)  Suspension  of  cfficial  ex-  X.  Publication  of  imperial  edicts, 

animations.  XI.  Amendments     to     commercial 

III.  Assassination      of      Japanese  treaties;     improvement     of 

chancellor.  rivers. 

IV.  Erection  of  monuments.  XII.  Office      of     Foreign    Affairs; 
V.  Importation    of    arms,    etc.  evacuation  of  Peking,  etc. 


HAGUE  CONVENTIONS. 
1899. 

CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DIS- 
PUTES. 

Concluded  July  29,  1899;  ratification  advised  by  Senate  February 
5,  1900;  lfatified  by  President  April  7,  1900;  ratifications  de- 
posited uith  the  Netherlands  Government  September  4,  1900; 
proclaim  '.d  November  1,  1901. 

IT.  S.  Treaties  1904,  p.  907;  32  Stats,  at  Large,  1779. 

ARTICLES. 

Title  I.  Maintenance  of  general  peace. 

I.  Pacific  settlement  of  international  differences. 

Title  II.  Mediation. 

II.  Good  offices.  VI.  Effect  of  mediation. 

Ill    Offer  of  mediation.  VII.  Acceptance  of  mediation. 

*  r  .  Mediator.  VIII.  Special  mediation ;   choos- 

V.  Termination  of  mediator's  ing  mediators,  etc. 
duties. 

Title  III.  International  commissions  of  inquiry. 

IX.  Investigations  by  commis-  XII.  Facilities     supplied    com- 

sion.  mission. 

X.  Special  agreement;   juris-  XIII.  Eeport. 

diction.  XIV.  Effect  of  report. 
XI.  Formation. 
Treaties — 50 


786 


APPENDIX   III. 


Title    IV.  International    arbitration. 
Chapter  I.  System  of  arbitration. 

XV.  Object.  XVIII.  Submission  to  award. 

XVI.  Recognition.  XIX.  Extension  of  arbitration. 

XVII.  Questions  considered. 


Chapter  II.  Permanent  court  of  arbitration. 

XXVI.  Special  board  of  arbitra- 
tion; extension  of  juris- 
diction. 

XXVII.  Notice  to  disputants. 

XXVIII.  Administrative  council. 

XXIX.  Expenses  of  bureau. 


XX.  Organization. 
XXI.  Jurisdiction. 
XXII.  International    bureau. 
XXIII.  Arbitrators. 
XXIV.  Selection    of    arbitrators; 

assembling  of  tribunal. 
XXV.  Seat  of  tribunal. 


Chapter  III.  Arbitral  procedure. 


XXX.  Rules. 
XXXI.  Special  act. 
XXXII.  Selection    of    arbitrators. 
XXXIII.  Sovereign  as  arbitrator. 
XXXIV.  Umpire. 
XXXV.  Vacancies. 
XXXVI.  Place    of    session. 
XXXVII.  Agents,    counsel,    etc. 
XXXVIII.  Language. 
XXXIX.  Procedure. 

XL.  Exchange    of    documents. 
XLI.  Discussions. 
XLII.  Limiting  discussions. 
XLIII.  New  evidence. 
XLIV.  Production  of  acts. 

XLV.  Oral   arguments. 
LXVI.  Rulings. 


XLVIL  Questions   by   tribunal. 
XL VIII.  Interpretation. 
XLIX.  Rules  of  procedure. 

L.  Closing  discussion. 
LI.  Deliberation. 
LII.  Award. 

LIII.  Announcing   award. 
LIV.  Effect  of  award. 

LV.  Revision  of  award. 
LVI.  Parties  bound  by  award. 
LVII.  Expenses  of  tribunal. 
LVIII.  Ratification. 

LIX.  Adhesion  by  powers  non- 
signatory. 
LX.  Adhesion  by  powers  not 

represented. 
LXI.  Denunciation. 


1899. 
DECLARATION  AS  TO  LAUNCHING  OF  PROJECTILES  AND  EXPLOSIVES. 

Concluded  July  29,  1899;  ratification  advised  by  Senate  February 
5,  1900;  ratified  by  President  April  7,  1900;  ratifications  de- 
posited with  Netherlands  Government  September  4,  1900;  pro- 
claimed November  1,  1901. 

U.  S.  Treaties  1904,  p.  922;    32  Stats,  at  Large,  1839. 
This  declaration  expired  July  29,  1904. 


APPENDIX   111.  787 


1899. 

CONVENTION  FOR  THE  ADAPTATION  TO  MARITIME  WARFARE  OF  THE 
PRINCIPLES  OF  THE  GENEVA  CONVENTION  OF  AUGUST  22,  1864. 

Concluded  July  29,  1899;  ratification  advised  by  Senate  May  •/, 
1900;  ratified  by  the  President  August  3,  1900;  ratifications 
deposited  with  the  Netherlands  Government  September  4, 
1900;  proclaimed  November  1,  1901. 

U.  S.  Treaties  1904,  p.  924;    32  Stats,  at  Large,  1827. 

ARTICLES. 

I.  Military    hospital    ships.  VIII.  Disabled  prisoners. 

II.  Private   hospital  ships.                        IX.  Prisoners    of   war. 

III.  Hospital      ships  of      neutral             X.  Excluded. 

countries.  XI.  Powers  bound  by  rules. 

IV.  Use    of    hospital  ships.                       XII.  Katification. 

V.  Color;    flag.  XIII.  Nonsignatory  powers. 

VI.  Neutral   vessels.  XIV.  Denunciation. 
VII.  Belief  staffs. 

1899. 

CONVENTION  WITH  RESPECT  TO  THE  LAWS  AND  CUSTOMS  OF  WAR  ON 

LAND. 

Concluded  July  29,  1899;  ratification  advised  by  the  Senate  March 
14,  1902;  ratified  by  the  President  March  19,  1902;  ratifica- 
tions deposited  with  the  Netherlands  Government  April  5, 
1902;  proclaimed  April  11,  1902. 

U.  S.  Treaties  1904,  p.  931;    32  Stats,  at  Large,  1803. 

AETICLES. 

I.  Instructions    to    forces.  IV.  Nonsignatory   powers. 

II.  When  binding.  V.  Renunciation. 

III.  Ratification. 

ANNEX. 

Section  «T. — Belligerents. 
Chapter  I. — Qualifications  of  belligerents. 
I.  Application     of    laws     of  III.  Combatants;       noncombat- 

war.  ants. 

II.  Unorganized  belligerents. 


788  APPENDIX  III. 

Chapter  II. — Prisoners  of  war. 

IV.  Treatment.  XII.  Eecapture  after  parole. 

V.  Confinement.  XIII.  Eeporters,  sutlers,  etc. 

VI.  Employment.  XIV.  Bureau  of  information. 

VII.  Maintenance.  XV.  Belief  society. 

VIII.  Laws;  regulations;  recap-  XVI.  Postage;   gifts. 

ture.  XVII.  Officers'  pay. 

IX.  False  statements.  XVIII.  Eeligious  freedom. 

X.  Parole.  XIX.  Wills. 

XI.  Parole  voluntary.  XX.  Eepatriation. 

Chapter  III. — Sick  and  wounded. 
XXI.  Obligations     of     belligerents. 

Section  II.— Hostilities. 
Chapter  I. — Means  of  injuring  enemy;  sieges;  bombardments. 

XXII.  Means  of  injuring  enemy.  XXVI.  Warning  authorities. 

XXIII.  Prohibitions.  XXVII.  Eeligious    edifices,    etc. 

XXIV.  Obtaining  information.  XXVIII.  Pillage. 
XXV.  Attack  of  towns,  etc. 

Chapter  II. — Spies. 

XXIX.  Who  considered  spies.  XXXI.  Eesponsibility     for     pre- 

XXX.  Trial.  vious  acts. 

Chapter  III. — Flags  of  truce. 

XXXII.  Bearer.  XXXIV.  Treachery. 

XXXIII.  Eeceiving  flag. 

Chapter  IV.— Capitulation. 
XXXV.  Eules. 

Chapter  V. — Armistices. 

XXXVI.  Suspension  of  hostilities.          XXXIX.  Terms. 
XXXVII.  General  and  local.  ,        XL.  Violation. 

XXXVHI.  Notification.  XLI.  Punishment. 


APPENDIX  III.  789 

Section   HI. — Military   authority   over   hostile  territory. 

XLIL  Territory;    occupation.  L.  Penalty. 

XLIII.  Ee-establishing   order.  LI.  Collection  of  taxes. 

XLIV.   Forced  military  service.  LII.  Eequisition  and  services. 

XLV.  Oath.  LITE.  Seizure    of    public    cash, 

XL VI.  Eights    respected.  etc.;  railways,  etc. 

XL VII.  Pillage.  LIV.  Plant    of    railways. 

XL VIII.  Taxes,    dues,    etc.  LV.  Administration. 

XLIX.  Taxes  for  military  neces-  LVI.  Eeligious,     etc.,     institu- 

sities.  tion. 

Section  IV. — Internment  of  belligerents  and  care  of  wounded  in  neutral  coun- 
tries. 

XVII.  Internment     in     neutral  LIX.  Transit. 

state.  LX.  Geneva  convention. 

LVIII.  Treatment. 

1905. 

TREATY  BETWEEN  THE  UNITED  STATES  AND  CERTAIN  POWERS  FOR 
THE  ARBITRATION  OF  PECUNIARY  CLAIMS. 

Signed  at  Mexico  January  30,  1902;  ratification  advised  by  the 

Senate  January  11,  1905;  ratified  "by  the  President  of  the 

United  States  January  28,  1905;  ratifications  deposited  with 

the    Mexican    Government  February    10,1905;    proclaimed 
March  24,  1905. 

Treaties  and  Proclamations,  2845;    34  Stats,  at  Large,  pt.  3. 

AETICLES. 

I.  Pecuniary    claims    to    be    arbi-  III.  States  affected. 

trated.  IV.  Special   treaty  provisions. 

II.  Permanent  court  of  arbitration  V.  Effect   and   duration. 

to   decide.  ] 


APPENDIX  IV 


CHRONOLOGICAL   LIST   OF   TREATIES,   CONVEN- 
TIONS, ETC. 


Country. 


France 
France 
France 
France 


Netherlands  . 
Netherlands  . 
Great  Britain 
Great  Britain 


France 


Sweden     

Great    Britain.  . 

Prussia     

Morocco    

France     

Great    Britain .  . 

Algiers    

Spain    . 

Great    Britain.  . 


Tripoli 
Tunis 


Great    Britain 


Prussia 
France 


Great    Britain.  . 


Spain 

ance 
France 


France     

Tripoli    

Great    Britain  .  . 

Algiers    

Great    Britain.  . 
Sweden   and  Nor 

way     

Algiers    


Subject. 

Alliance    

Separate  and  secret  article.  .  .  . 

Amity  and  Commerce 

Contract  for  the  Repayment  of 
Loans  made  by  the  King  of 
France  

Peace  and  Commerce 

Recaptured  vessels 

Provisional  Peace 

Armistice,  cessation  of  hostili- 
ties   

Contract  for  a  New  Loan  and 
the  Repayment  of  the  Old 
Loans  made  by  the  King  of 
France  

Amity  and  Commerce 

Definitive    Peace 

Amity  and  Commerce 

Peace   and   Friendship 

Consular     

Amity,  Commerce,  and  Naviga- 
tion  

Peace   and  Amity . .  .  .  . 

Friendship,  Boundaries,  Com- 
merce and  Navigation 

Explanatory  to  Article  III, 
Treaty  of  1794 

Peace   and   Friendship 

Amity,  Commerce,  and  Naviga- 
tion   

Explanatory  to  Article  V, 
Treaty  of  1794 

Amity  and  Commerce 

Peace,  Commerce,  and  Naviga- 
tion   

Payment  of  Indemnities  and 
Settlement  of  Debts 

Claims     , 

Cession  of  Louisiana 

Payment  for  the  Purchase  of 
Louisiana  

Claims     

Peace   and  Amity 

Peace   and  Amity 

Amity  and   Peace 

Commerce    and    Navigation... 

Amity    and    Commerce 

Peace    and     Amity 


Signed. 

February  6,  1778. 
February  6,  1778. 
February  6,  1778. 


July    16,    1782 

October  8.  1782  .  .  . 
October  8,  1782.  .  . 
November  30,  1782 

January  20,    1783. 


February    25,  1783. 

April    3,    1783 

September  3,  1783. 
September  10,  1785 
January,  1787.  .  .  . 
November  14,  1788 

November  19,  1794 
September  5,  1795. 


Proclaimed. 

May  4,  1778.a 
May  4,  1778.a 
May  4,  1778.a 


January   22,    1783.a 
January   22,    1783. 
January  23,    1783. 
April    11,    1783. 


October    31,    1783.a 
September  25,  1783. 
January    14,    1784. 
October,    1786.b 
July    18,    1787.a 


February  29,  1796. 
March  2,  1796.C 


October    27,    1795.      August  2,   1796. 


May  4,  1796 

November    4,  1796. 


May    9.    1796.C 
June   10,   1797. 


August,    1797 December  24,   1799.C 


March    15.    1798.  . 
July   11,    1799 


June     5,     1798.C 
November  4,  1800. 


September  30-  1800     December  21,   1801. 


January  8,  1802  .  . 
August  11,  1802.  . 
April  30,  1803 

April  30,  1803. 
April  30,  1803. 
June  4,  1805. . 
December  24,  1814. 
June  30,  1815. 
luly  3,  1815.  .  . 


April  27,  1802. 
December  22,   1818. 
October  21,  1803. 

October  21,  1803- 
October  21,  1803. 
April   12,   1806. c 
February  18,  1815. 
December  26,   1815. 
December  22,   1815. 


September  4,1816.      December  31,   1818. 
December     22,     23, 

1816 February  11,  1822. 


a  Ratified  by  Congress.  b  Ratifications  exchanged. 

c  Ratification  advised  by  the  Senate. 

(791) 


792 


APPENDIX  IV. 


Country. 

Subject. 

Signed. 

Proclaimed. 

Great    Britain  .  .  . 

Naval     Forces     on     the     Great 
Lakes     

April,     1817  

April  28,  1818. 

3reat    Britain  .  .  . 

Respecting    Fisheries,    Bound- 
ary,   and   the   Restoration   of 

Slaves     

October  20,  1818.  . 

January  30,   1819. 

Spain    

Friendship,      Cession      of      the 
Floridas,     and    Boundaries  .  . 

February  22,  1819. 

February  22,  1821. 

France    
Great    Britain.  .  . 

Navigation   and    Commerce  
Claims    

June  24,   1822  
July   12,    1822  

February  12,  1823. 
January   11,    1823. 

Tunis    

Amending    Treaty    of    August, 
1797   

February  24,  1824. 

January   21,    1825. 

_ 

Pacific    Ocean    and    Northwest 

Coast  of  America  

April  17,  1824  

January    12,    1825. 

Colombia    

Amity,   Commerce,   and  Naviga- 
tion    v  

October   3,    1824.  . 

May   31,   1825. 

Central  America. 

Peace,    Amity,    Commerce,    and 
Navigation   

December  5,  1825. 

October  28,  1826. 

Denmark    

Friendship,  Commerce  and  Navi- 
gation       

April  26,   1826  

October  14,  1826. 

Great    Britain  .  .  . 

Relative   to   the   Indemnity   for 
Slaves     

November  13,  1826 

March  19,  1827. 

Sweden  and  Nor- 

July  4,    1827  

January  19,  1828. 

Great    Britain  .  .  . 

Continuing     in     Force     Article 
III,  Treaty  of  1818  

August  6,    1827  .  .  . 

May  15,  1828. 

Great    Britain  .  .  . 

Commercial    

August  6,    1827  .  .  . 

May  15,  1828. 

Great    Britain  .  .  . 

Relative    to    the    Northeastern 

Boundary  

September  29,  1827 

May  15,  1828. 

Hanseatic  Repub- 

Friendship,      Commerce,       and 

lics   

December  20,  1827 

June  2,   1828. 

Mexico    
Prussia  

Commerce  and  Navigation  

January  12,  1828.  . 
May  1,  1828  

April  5,   1832. 
March  14,   1829. 

Hanseatic  Repub- 

Additional   Article    to    Conven- 

lics     

tion  of  1827    

June  4,  1828  

July  29,    1829. 

Brazil   

Amity,  Commerce,  and  Naviga- 

tion   

December  12,  1828 

March   18,    1829. 

Austria-Hungary  . 

Claims    

August  27,  1829.  . 
March  28,  1830.  .  . 

February  10,  1831. 
June  5,  1830. 

Ottoman  Empire. 

Commerce  and  Navigation  

May  7,  1830  

February  4,  1832. 

April  5,  1831  

April  5,  1832. 

Mexico    

Amity,   Commerce,  and  Naviga- 

tion      

April  5,  1831  

April  5,  1832. 

Claims    and    Duties    on    Wines 

and    Cotton  

July  4,  1831  

July  13,   1832. 

Chile   

Peace,    Amity,    Commerce,    and 

May  16,   1832  

April  29,  1834. 

Two    Sicilies.  .  .  . 

Claims    

October  14.  1832  .  . 

Augus.t  27,  1833. 

Russia    

Commerce  and  Navigation  

December  18,  1832 

May  11,  1833. 

Siam     

Amity  and  Commerce  

March  20,  1833... 

June  24,   1837. 

Chile     

Additional      to      the      General 

Treaty   of   1832  

September  1,  1833. 

April  29,  1834. 

Muscat    

Amity  and  Commerce  

September  21,  1833 

June  24,    1837. 

Spain    .  .«  
Mexico    

Claims    
Limits     

February  17,  1834. 
April  3,  1835  

November  1,  1834. 
April  21,  1836. 

Venezuela     

Peace,    Amity,    Commerce,    and 

January  20,  1836.  . 

June  30,   1836. 

Morocco     

Peace  and  Friendship  

September  16,  1836 

January  30,  1837. 

Peru-Bolivia     .  .  . 

Peace,    Friendship,    Commerce, 

November   30,  1836 

October  3,  1838. 

Commerce  and  Navigation  

December  10,  1837 

August  30,  1838. 

Texas    

April  11,  1838  

July   6,    1838. 

Texas    

April  25,  1838  

October  13,  1838. 

Sardinia    

Commerce  and  Navigation  

November  26,  1838 

March  18,  1839. 

Netherlands    .... 

January  19,  1839.  . 

May  24,  1839. 

Mexico    

Claims    

April  11,  1839  

April   8,    1840. 

Ecuador    

Peace,    Friendship,    Navigation, 

and    Commerce  

June  13,  1839.  . 

September  23,  1842 

Hanover  

Commerce  and  Navigation  

May  20,  1840  

January   2,    1841. 

Portugal     

Commerce  and  Navigation  

August  26,   1840.  . 

April  24,    1841. 

Peru   

Claims    

March  17,  1841  .  .  . 

January  8,  1847. 

Great    Britain  .  .  . 

Boundaries,       Suppression       of 

Slave    Trade,     and     Extradi- 

August  9,   1842  .  .  . 

November  10,  1842. 

Mexico    
France    

Claims    
Extradition    

January  30,  1843  .  . 
November  9,  1843. 

March  30,  1843. 
April  14,  1844. 

Hesse     

Abolishing  Droit  d'Aubaine  and 

Taxes  on  Emigration  

March  26,  1844.  .  . 

May  8.  1845. 

APPENDIX  IV. 


793 


Country. 
Wiirttemberg . 


China    . 
Bavaria 


France 
Belgiuix 

Saxony 

Nassau 


Hanover 

Great    Britain.  .  . 

Two   Sicilies    .  . . 

Colombia       (New 

Granada)     .... 

Switzerland    .... 

[ecklenburg- 

Schwerin 

Mexico    

Austria-Hungary . 


Jrazil 


Guatemala    

Hawaiian  Islands. 

alvador  

Sreat  Britain  .  . . 

Colombia       (New 

Granada)    .... 

torneo    

Switzerland    .... 

Great    Britain... 

'ortugal 

V>sta  Rica 


Peru 


Banseatic  Repub- 
lics   

'russia 

Netherlands    .... 

reat  Britain  .  . . 

Trance    

Argentine  Repub- 
lic   

Argentine  Repub- 

avaria    

Mexico    


apan    

jrreat    Britain.  .  . 


Chew 

Jreat    Britain.  . . 

,ussia     

;runswick        and 

Liineburg 

Two    Sicilies 

3anover   

Netherlands    .... 
Two    Sicilies. . .  . 

3iam 


Subject. 

Abolishing  Droit  d'Aubaine  and 

Taxes  on  Emigration 

Peace,  Amity,  and  Commerce.  . 
Abolishing  Droit  d'Aubaine  and 

Taxes  on  Emigration 

Extradition,  additional  article. 

Commerce  and  Navigation 

Abolishing  Droit  d'Aubaine  and 

Emigration  Taxes 

Abolishing  Droit  d'Aubaine  and 

Emigration  Taxes 

Commerce  and  Navigation 

Establishing  Boundary  West  of 

the  Rocky  Mountains 

Commerce  and  Navigation 

Peace,  Amity,  Navigation,  and 

Commerce  

Property  Rights 

Commerce  and  Navigation 

Peace,  Friendship,  Limits,  and 
Settlement  

Relative  to  the  Disposal  of 
Property  and  Consular  Juris- 
diction   

Satisfaction  of  Claims  of  Citi- 
zens of  the  United  States  on 
Brazil 

Peace,  Friendship,  Commerce, 
and  Navigation 

Friendship,  Commerce  and 
Navigation,  and  Extradition. 

Amity,  Navigation  and  Com- 
merce   

Ship-canal  Connecting  Atlantic 
and  Pacific  Oceans 

Consular     

Amity,  Commerce  and  Naviga- 
tion  

Friendship,  Commerce,  and 
Navigation  

Protocol,   Horseshoe  Reef 

Claims    

Friendship,  Commerce,  and 
Navigation  

Friendship,  Commerce,  and 
Navigation 

Consular  

Extradition    

Commerce  and  Navigation 

Claims    

Consular    

Free  Navigation  of  the  Rivers 
Parana  and  Uruguay 

Friendship,  Commerce,  and 
Navigation 

Extradition    

Boundary,  Cession  of  Territory, 
Transit  of  Isthmus  of  Te- 
huantepec,  etc 

Peace,  Amity,  and  Commerce. . 

Reciprocity  as  to  Fisheries,  Du- 
ties, and  Navigation,  British 
North  American  Colonies .  . . 

Friendship  and  Commerce 

Claims    

Rights  of  Neutrals  at  Sea 

Respecting  the  Disposition  of 
Property  

Rights  of   Neutrals  at  Sea .... 

Extradition    

Consular     

Amity,  Commerce  and  Naviga- 
tion, and  Extradition 

Amity  and  Commerce 


Signed. 


April  10,  1844 

July  3,  1844 

January  21.  1845. 
February  24,  1845. 
November  10,  1845 


Proclaimed. 


December  16,  1844. 
April    18,    1846. 

August  15,  1846. 
July  24,    1845. 
March  31,  1846. 


May  14,  1845 September  9.  1846. 


May  27,  1845. 

June  10,   1846 

June  15,   1846.  . 
December  1,  1845. 

December  12,  1846 
May   18,    1847 

December  9,  1847. 
February  2,  1848.. 


January  26,    1847. 
April  24,  1847. 

August  5,   1846. 
July  24,  1846. 

June  12,   1848. 
May  4.    1848: 

August  2,   1848. 
July  4.    1848. 


May   8,    1848 February  25,  1850. 


January  27,  1849.  . 

January  19,  1850. 

March  3,  1849  

July  28,   1852. 

December  20,  1849 

November  9,  1850. 

January  2.   1850.  . 

April  18,  1853. 

April  19,  1850  

July  5,   1850. 

May  4,   1850  

December  5,  1851. 

June  23,  1850  

July  12,  1854. 

November  25,  1850 
December  9,  1850. 
February  26,    1851 

November  9,  1855. 
September  1,  1851. 

Tune  10,  1851  

May  26,   1852. 

July  26,   1851  

July  19,  1852. 

ipril  30,  1852  
June  16,  1852  
August  26,   1852  .  . 
February   8,   1853. 
February  23,    1853 

June  6,   1853. 
June   1,   1853. 
February  26,  1853. 
August  20,  1853. 
August  12,  1853. 

July  10,  1853 April  9,  1855. 


July  27,  1853 

September  12,  1853 


December  30,  1853 
March  31,  1854.  .. 


June  5,  1854 

July  11,  1854 

July  17,  1854 

July  22,  1854 

August  21,  1854. 
January  13,  1855 
January  18,  1855 
January  22,  1855 

October  1,  1855.  . 
May  29,  1856 


April  9,  1855. 
November  18.  1854. 


June  30,  1854. 
June  22,  1855. 


September  11.  1854. 
March  9,  1855. 
September  11.  1854. 
November  1.  1854. 

July  30,  1855. 
July  16,  1855. 
May  5,  1855. 
May  26,  1855. 

December  10,  1858. 
August  16,  1858. 


794 


APPENDIX    IV. 


Country. 


Subject. 


Signed. 


Proclaimed. 


Rights  of  Neutrals  at  Sea  

July  22,  1856  

November  2.  1857. 

Persia     

Friendship  and  Commerce  

December  13,   1856 

August   18,    1857. 

Austria-Hungary  . 

Extradition     

July   3,    1856  

December  15.   1856. 

Extradition     

January  30.  1857.  . 

May  19,  1857. 

Denmark     
Japan    

Discontinuing  the  Sound  Dues. 
Commercial   and   Consular  

April  11,  1857.  .  .  . 
June  17,    1857.  .  .  . 

January  13,  1858. 
June  30,  1858. 

Peru    

Interpreting  Article  XII,  Treaty 

of   1851    

July  4,   1857  

October  14,  1858. 

Colombia        (New 

Granada)    .... 

Claims  

September  10,  1857 

November  8,  1860. 

Peace,     Friendship,      Commerce 

and  Navigation    

May  13,  18*58  

January  8,  1863. 

China    

Peace,   Amity,  and  Commerce  .  . 

June   18,    1858.  .  .  . 

January  26.  1860. 

Belgium    

Commerce  and  Navigation    .... 
Commerce  and  Navigation    .... 

July  17,  1858  
July  29,  1858  

April  19,  1859. 
May  23,  1860. 

China    

Establishing  Trade  Regulations 

and   Tariff    

November   8.    1858. 

China    

Claims  

November   y     1858. 

Chile   

Arbitration        of        Macedonian 

Claims    

November  10,  1858 

December  22,  1859. 

France    

Extradition,    additional    article. 

February  10,  1858. 

February  14.   1859. 

Venezuela     

Claims  

January   14,    1859. 

February  26.   1861.  a 

Paraguay    

Claims  

February  4,  1859.  . 

March  12,   1860. 

Paraguay    

Friendship,  Commerce,  and  Nav- 

igation     

February  4,  1859.  . 

March  12,   1860. 

Sweden   and  Nor- 

way      

Extradition  

March  21,  1860.  . 

December  21,   1860. 

Costa  Rica  

Claims  

July   2,    1860  

November  11,  1861. 

Venezuela     

Amity,   Commerce    and    Naviga- 

tion, and  Extradition  

August  27,    1860.  . 

September  25,  1861. 

Denmark     

Consular  

July    11,    1861.  .  .  . 

September  20,  1861. 

Abolishing     Stade      or     Bruns- 

hausen  Dues    

November  6,  1861. 

June  17,   1862. 

Extradition  

December    11,  1861 

June  20,   1862. 

Great    Britain  .  .  . 

Suppression   of     African    Slave 

Trade    

April  7,  1862  

June  7,   1862. 

Ottoman  Empire. 
Liberia    

Commerce  and  Navigation    .... 
Commerce  and  Navigation    .... 

February  25,  1862. 
October    21,    1862. 

July  2,  1862. 
March  18,   1863. 

Ecuador    

Claims  

November  25,  1862 

September  8,  1864. 

Peru    

Claims  

December  20,   1862 

May  19,  1863. 

Peru    

Claims  

January   12,    1863. 

May  19,  1863. 

Great    Britain  .  .  . 

Additional    Article    Suppression 

of    Slave   Trade,    1862  

February  17,  1863. 

April  22,   1863. 

Belgium    

Relative   to   Import   Duties   and 

Capitalization       of       Scheldt 

Dues  

May  20,  1863  

November  18,  1864. 

Great    Britain  .  .  . 

Claims  

July    1,    1863  

March    5,    1864. 

Belgium    

Extinguishment    of   the    Scheldt 

Dues  

July   20,    1863  

November  18,  1864. 

Japan    

Reduction  of  Import  Duties  .  .  . 

January   28.    1864. 

April    9,    1866. 

Colombia     

Claims  

February  10,  1864. 

August    19,    1865. 

Honduras    

Friendship,  Commerce,  and  Nav- 

igation     

July   4,    1864  

May  30,  1865. 

Japan    

Payment  of  the  Simonoseki  In- 

demnities   

October  22,  1864.  . 

April  9,   1866. 

Hayti    

Amity,    Commerce    and    Naviga- 

tion, and  Extradition  

November    3,  1864. 

July   6,    1865. 

Morocco    

Cape    Spartel    Lighthouse  

May    31,    1865  

March    12,    1867. 

Venezuela    

Claims    

April  25,   1866  

May   29,    1867. 

Japan    

Establishing  Tariff  Duties  

June  25,   1866.  .  .  . 

Dominican  Repub- 

Amity,   Commerce    and    Naviga- 

lic     

tion,  and  Extradition    

February  8,  1867.  . 

October  24,  1867. 

Madagascar    .... 

Commerce  and  Navigation  

February  14,   1867. 

October  1,  1868. 

Russia     

Ceding  Alaska   

March  30,  1867.  .  . 

June  20,  1867. 

Nicaragua   

Friendship,        Commerce,        and 

Navigation,    and    as    to    Isth- 

mian Transit  

June  21,    1867.  .  .  . 

August  13,  1868. 

Siam   

Modification   to   Treatv   of   May 

29,    1856    

December        17-31, 

1867  

August  11,  1868.  a 

Russia     

Additional  Article  to  Treaty  of 

Commerce,        1832.        Trade- 

marks   

Januarv  27,    1868. 

October  15,  1868. 

Italy   

Consular    

February  8,  1868.  . 

February  23,  1869. 

North         German 

Union    

Naturalization    

February  22.  1868. 

May    27,    1868. 

Italy   

Extradition  

March  23,   1868.  .  . 

September  30,  1868. 

Bavaria     

Naturalization    

May  26,  1868  

October  8,  1868. 

a  Ratified  by  the  President. 


APPENDIX    IV. 


795 


Country. 

Subject. 

Signed. 

Proclaimed. 

Mexico    
China    

Claims    
Trade,     Consuls,     and     Emigra- 

July  4,    1868  

February  1,  1869. 

tion   

July  28,  1868  

February  5    1870 

Mexico    

Naturalization    

July  10,  1868  

February  1,  1869 

Jaden   
Wiirttemberg.  .  .  . 

Naturalization    
Naturalization  and  Extradition. 

July  19,  1868  
July  27,   1868  

January  10,    1870 
March  7,  1870 

lesse    

Naturalization    

August    1,    1868.  .  . 

August   31,    1869 

ielgium    

Naturalization    

November  16,  1868 

July  30,  1869 

'eru    

Claims    

December  4    1868. 

July   6,    1869 

Belgium    

Consular    

December  5.   1868. 

March  7,  1870 

Jelgium    

Trademarks    

December  20,    ISO,-* 

July  30,  1869 

taly   
Italy   

Consular    
Additional    to    Extradition    Con- 

January 21,   1869.. 

May  11,  1869! 

vention,  1868   

January   21,    1869. 

May  11,  1869 

France     

Trademarks    

April  16,  1869  

July  6,  1869. 

Sweden  and  Nor- 

way    

Naturalization    

May  26,  1869  

January   12,    1872 

Jreat    Britain  .  .  . 

Naturalization    

May  13,  1870  

September  16    1870 

Salvador   

Extradition   

May  23,  1870  

March  4,   1874 

Jreat    Britain  .  .  . 
Nicaragua    

Suppression   of   Slave  Trade  .  .  . 
Extradition   

June   3,    1870  
June   25,    1870.  .  .  . 

September  16,  1870. 
September  19,  1871 

Austria-Hungary  . 

Consular     

July  11,  1870  

June  29,  1871 

Peru    

Friendship,  Commerce,  and  Nav- 

igation     

September  6,  1870. 

July  27,  1874. 

'eru    

Extradition   

September  12,  1870 

July  27,  1874. 

Austria-Hungary 

Naturalization    

September  20,  1870 

August  21,  1871 

Italy   

February  26,  1871. 

November  23,  1871 

VIexico    
Great    Britain  .  .  . 

Claims   
Settlement  of  all  Causes  of  Dif- 

April  19,  1871  
1 

February   8,    1872. 

May    8,    1871  

July  4,  1871. 

German  Empire.  . 

Consular     

December    11,  1871 

June  1,  1872. 

Orange            Free 

Friendship,  Commerce,  and  Nav- 

State     

igation    

December    22.  1871 

August  23,  1873 

Ecuador    

Naturalization    

May    6,    1872  

November  24,  1873 

Ecuador    

Extradition   

June   28,    1872  

December  24,  1873 

Denmark   

Naturalization    

July   20,    1872.  .  .  . 

April  15,  1873. 

Mexico    

Claims  

November  27,  1872 

July  24,  1873. 

Great     Britain.  .  . 

Additional  Article  to   Treaty  of 

May      8,      1871,      Respecting 

Meeting  Places   for  the  Com- 

mission Under  Article  XII.  . 

January    18,    1873. 

April    15,    1873. 

Belgium    

Extradition   

March    19,    1874.  . 

May   1.    1874. 

Russia      

Trademark    Declaration    

March  28,  1874.  .  . 

November  24,   1874 

Ottoman  Empire  . 

Extradition   

August   11,    1874.  . 

May  26,  1875. 

Mexico    

Claims  

November  20,  1874 

January   28,    1875 

Hawaiian  Islands. 

Reciprocity  

January   30,    1875. 

June   3",    1875 

Belgium    

Commerce  and  Navigation  

March    8,    1875.  .. 

June  29,    1875. 

Claims   

April  29,  1876  

June   29,    1876. 

Spain    

Extradition   

January   5,    1877.  . 

February  21.  1877. 

Great    Britain  .  .  . 

Declaration    Affording    Recipro- 

cal     Protection      to      Trade- 

marks   

October    24,    1877. 

July  17,  1878 

Samoan  Islands.  . 

Friendship    and    Commerce.  .  .  . 

January   17,    1878. 

February  13,   1878. 

[talv    

Consular   

May   8,    1878  

September  27.  1878 

Netherlands    .... 

Consular   

May   23,    1878  

August   1,    1879. 

Commercial  

July   25,    1878  

April  8,   1879. 

Brazil    

Trademarks    Agreement    

September  24,  1878 

June    17,    l?~\) 

France      

Claims  

January  15.    1880. 

June  25.  1880 

Belgium    

Consular   

March  9,  1880  

March  1,  1881. 

Japan    

Reimbursing       Shipwreck       Ex- 

penses    

May    17,    1880  

October  3,  1881. 

Netherlands    .... 

Extradition    

May   22,    1880.  .  .  . 

July  30,  1880. 

Morocco    

Protection   

July   3,    1880  

December  21,   1881 

China    

Immigration   

November   17,  1880 

October   5,    1881. 

China    

Commercial       Intercourse      and 

, 

Judicial   Procedure  

November   17,  1880 

October    5,    1881. 

Italy   

Supplemental   to    Consular  Con- 

vention,   1878  

February  24.,  1881. 

June  29,  1881. 

Madagascar    .... 

Friendship    and    Commerce.  .  .  . 

May   13.    1881  

March  13,  1883. 

Roumania  

Consular   
Commerce  and  Navigation  

June  17,   1881  
October    14     1881  . 

July  9,  1883. 
December  27,   1882. 

Consular  

October    14,    1881. 

December  27,   1882. 

Korea    

Peace,    Amity,    Commerce,    and 

Navigation    

May   22,    1882.  .  .  . 

June  4,  1883. 

Italy        

Trademark   Declaration    

June  1.   1882  

March  19,   1884. 

Belgium    

Extradition   

June  13,   1882.  .  .  . 

November  20,  1882. 

796 


APPENDIX  IV. 


Country. 


Spain    

France-  

Mexico    

Spain    

Mexico    

France    

Netherlands    .... 

Switzerland    .... 

Luxemburg     .... 

Belgium    

International  As- 
sociation of 
Kongo 

Siam 


Russia 


Italy 

Mexico    

Hawaiian  Islands. 

Mexico    

Venezuela 

Mexico    

Denmark    

Japan    

Mexico    

Zanzibar 


Tonga 


Russia    

Netherlands 
Peru , 


Venezuela 


Colombia 
Denmark 


Venezuela     


Mexico    

Mexico    

Great  Britain  and 
Germany    .... 

Great    Britain. . . 
Kongo  

Venezuela     

Great    Britain . . . 

Great   Britain .  . . 
Great    Britain... 

Denmark    

Great    Britain .  . . 


Chile   .  . . 

Sweden 

Ecuador 


Norway 

Great    Britain .  . . 


China    . 


Subject. 

Trademark 

Claims 

Boundary     

Supplementary  Extradition   .  . . 

Commercial  Reciprocity 

Claims 

Agreement,       Registration      of 

Trademarks 

Agreement,  Trademarks 

Extradition 

Trademark 


Recognition  of  Flag 

Regulating     Liquor     Traffic     in 

Siam 

Declaration,   Admeasurement  of 

Vessels 

Additional  to  Extradition  Con- 
vention, 1868 

Boundary,  Rio  Grande  and  Rio 

Colorado , 

Commercial   Agreement    

Reciprocity 

Reciprocity 

Claims    

Boundary 

Admeasurement  of  Vessels.  . .  . 

Extradition 

Reciprocity 

Duty  on  Liquors,  and  Con- 
sular Powers 

Amity,  Commerce,  and  Naviga- 
tion   

Extradition 

Extradition 

Friendship^       Commerce,       and 

Navigation 

To  Remove  Doubts  as  to  the 
Meaning  of  the  Convention 

of   1885 

Extradition    

Submitting  Claijm  of  Carlos 
Butterfield  &  Co.  to  Arbitra- 
tion   

Extending  the  Time  for  Rati- 
fication of  the  Convention  of 

1885 

Boundary  

Boundary  

Neutrality  and  Autonomous 
Government  of  the  Samoan 

Islands 

Extradition    

Amity,  Commerce,  and  Naviga- 
tion   

Claims    

Relating  to  Fur  Seals  in  Bering 

Sea    

Renewal  of  the  Existing  Modus 

Vivendi  in  Bering  Sea 

Recovery     of     Deserters     from 

Merchant  Vessels 

Trademark 

Delimiting  Boundaries  not  Per- 
manently Marked 

Claims    

Extradition    

For    Arbitration    of    Claim    of 

Julio  R.  Santos 

Extradition    . 

Extending  the  Terms  of  the 
Alaskan  Boundary  Commis- 
sions   

Regulating  Chinese  Immigra- 
tion . 


Signed. 

June  19,   1882 

July    19,    1882 

July  29,    1882 

August  7,  1882  .  .  . 
January  20,  1883. 
February  8,  1883. 

February   16,   1883 

May   14,    1883 

October  29,  1883. 
April  7,  1884 


Proclaimed. 

April  19,  1883. 
December  29,   1882. 
March  5,  1883. 
April  19,  1883. 
June  2,  1884. 
June  25,  1883. 


August  12,   1884. 
July  9,  1884. 


April  22,  1884 

May  14,  1884 July  5,  1884. 

June  6,  1884 

June  11,  1884 April  24,  1885. 


November  12,  1884 
November  16,  1884 
December  6,  1884. 
February  25,  1885. 
December  5,  1885. 
December  5,  1885. 
February  26,  1886 

April  29,  1886 

May   14,    1886 


September  14,  1886. 
May  7,  1885. 
November  9,   1887 
May  4,  1886. 
June  4,  1889. 
June  28,  1887. 

November  3,  1886. 
February  1,  1887. 


July  3,   1886 August  17,  1888. 


October  2,  1886.  . 
March  28,  1887.  .  . 
June  2,  1887 


September  18,  1888. 
June  5,  1893 
June  21,   1889. 


August  31,   1887..     November  7,  1888. 


March  15,  1888.  .  . 
May   7,    1888 


June  4,  1889. 
February  6,   1891. 


December  6,  1888.     May  24,   1889. 


October  5,  1888.  , 
February  18,  1889. 
March  1,  1889 


June  14,  1889 

July  12,  1889 

January  24,   1891, 
January   19,    1892, 

February  29,  1892, 
April  18,  1892 

June  3,  1892. .. 
June  15,  1892.  . 

July  22,  1892.  . 
August  7,  1892 . 
January  14,  1893 

February  28,  1893. 
June   7,   1893 

February  3,  1894.  , 
March  17,  1894.    . 


June  4,   1889. 
October  14,  1889. 
December  26,  1890. 


May   21,    1890. 
March  25,   1890. 

April  2,  1892. 
July  30,  1894. 

May  9,   1892. 
May  9,  1892. 

August  1,    1892. 
October   12,    1892. 

August  26,  1892. 
January   28,    1893. 
March    18,    1893. 

November  7,  1894. 
November  9,  1893. 

March    28,    1894. 
December  8,  1894, 


APPENDIX   IV. 
| 

797 

Country. 

Subject. 

Signed. 

Proclaimed.     * 

Russia     

Modus   Vivendi   in   Relation   to 

the     Fur-Seal     Fisheries     in 

Bering    Sea    and    the    North 

May  4,  1894  

May  12,  1894. 

Mexico    
Japan    

Boundary   

Commerce  and  Navigation  

August  24,   1894.  . 
November  22,  1894. 

October  18,   1894. 
March  21,  1895. 

Mexico    
Great    Britain.  .  . 
Argentine  Repub- 

Boundary    
Claims    

October  1,  1895... 
"February  8,  1896.  . 

December  21,   1895. 
June  11,  189.6. 

lic   
Orange            Free 

Extradition    

September  26.  1896 

June  5,  190Q. 

State   
Mexico    

Chile  
Mexico    
Great    Britain  .  .  . 

Extradition    

Patents,  Trademarks,  etc  
Claims    

Protocol    in    re   Joint    Commis- 

October 28.  1896.  . 
November  6,  1896.. 
January  13,  1897.  . 
May   24,    1897  
October  29,  1897.". 

April  21,  189£. 
December  23,  1896. 
March  9,  1897. 
March  12,  1900. 
December  21,  1897. 

sion  for  Adjustment  of  Ques- 

tions  Relating  to   U.   8.   and 

Canada   

May  25,  1898  

May  30,  1898. 

Brazil   

Extradition    

May  28,  1898  

April  30,  1903. 

Prance    
Mexico    

Boundary   

May  28,  1898  
December  2,  1898.. 

May  30,  1898. 
February  3,  1899. 

Spain    

Peace    

December  10,  1898. 

April   11,    1899. 

Mexico    
Great    Britain.  .  . 
Great    Britain  .  .  . 
Germany-G  r  e  a  t 

Extradition     
Property     
Modus    Vivendi—  Alaska  

February  22,  1899. 
March    2,    1899... 
October  20.  18997.  . 

April  24,  1899. 
August  6,  1900. 

Britain    

Samoan  Claims  

November  7.  1899.. 

March  8,  1900. 

Peru    
Germany-G  r  e  a  t 

Extradition    

November  28.  1899. 

January  29,  1901. 

Britain  
Great    Britain  .  .  . 

Samoan    Islands  
Agree  men  t  —  Protection    of 

December  2.  1899,. 

February  16.  1899. 

Mexico    . 

Trademarks   in   Morocco  .... 
Boundary     

December  6,  1899,. 
December  22,  1899. 

May  7,  1900. 

Italy  

Reciprocity    Agreement  
Protocol  —  Registration  in  Phil- 

February  8.   1900.. 

July  18,   1900. 

Chile  .  , 

ippines  
Extradition    

March  29,  1900    . 
April  17,  1900      .  . 

April  28,  1900. 
May  27,   1902. 

Bolivia    
Switzerland    .... 
Portugal     

Spain    

Extradition    
Extradition    
Reciprocity    Agreement  
Reciprocity    Agreement  
Cession  of  Outlying  Islands  of 
Philippines    

April  21,  1900      .  . 
May  14,  1900.       .  . 
May  22,  1900.      .'. 
July  10,  1900.       .". 

November  7,  1900.. 

December  30,  1901. 
February  28,  1901. 
June  12,   1900. 
July  13,  1900. 

March  23,  1901. 

Mexico    .  ,  

Water  Boundary  

November  2i,  1900. 

December  24.  1900. 

Uosta  Rica  

Protocol     for     Construction     of 

Canal    

December  1.  1900. 

Nicaragua  

Protocol     for     Construction     of 

Canal    

November  21,  1900. 

Great    Britain  .  .  . 
Guatemala    

Supplementary  Extradition.  . 
Trademark     

December  13,  191^0. 
April  15,  1901  

April  22,  1901. 
April  11,  1902. 

Spain  
Guatemala  
jermany  

Agreement,  Letters  Rogatory.  . 
Property  
Agreemen  t  —  Protection     of 

August  7,  1901.".  . 
August  27,  1901".  .. 

September  18,  1903. 

Trademarks    in   Morocco  .... 

October  8,  1901.  .  . 

Servia  

Extradition     

October   25.    1901. 

May  17,   1902. 

Extradition     

October   26.    1901. 

June  14,  1902. 

Great    Britain  .  .  . 

Ship    Canal  

November  16,  1901. 

February  22.  1902. 

Denmark     

Extradition     

January  6.   1  902  .  . 

April    17,    1902. 

Great    Britain  .  .  . 

Supplementary   Property  

January  13,  1902.  . 

April   2,    1902. 

Flayti    
JJreat    Britain  .  .  . 
Mexico    
Spain    

Naturalization    
Zanzibar     
Supplementary     Extradition  .  .  . 
Friendship    and    General    Rela- 

March   22,    1902.. 
May   31,    1902  
June  25.   1902  

March  24,   1904. 
October  7,  1902. 
April  3,  1903. 

tions   

July   3,    1902  

April  20,  1903. 

France    

Commercial    Agreement  

August  20,  1902... 

August    22,     1902. 

Greece     

Consular     

November  19,  1902. 

July  11,   1903. 

Spain    

Agreement,    Copyright  

November  26,  1902. 

Cuba     

December    11.  1902 

December  17,  1903. 

Great    Britain... 
Cuba     

Alaskan  Boundary    
Supplemental    Reciprocity  

January  24.   1903. 
January  26,   1903. 

March  3,  1903. 
December  17,  1903. 

Venezuela  

Protocol,   Claims  

February  17,  19Q3. 

Cuba  .  .."  

Agreement  for  Lease  

February  23.  1903. 

October  6,  1903.a 

Guatemala    

Extradition    

February  27    1903. 

July  17,  1903. 

Great    Britain  .  .  . 

June  5,   1903  

December  24,  1903. 

luba   

Lease  of  Coaling  Stations  

Julv   2.    1903  

Hayti    

Naturalization    (extension)  .... 

July  28.   1903  

March  24,  1904. 

798 


APPENDIX   IV. 


Country. 


Subject. 


China    Commercial     

Panama     Ship    Canal    

Netherlands    ....  Extradition     

France    Relations  in  Tunis.  .  .  . 

Cuba Relations   with    Cuba.  . 

Cuba Supplementary     

Ethiopia Commercial    Relations. 

Panama     Extradition 

Hayti    

Norway 

Great    Britain 


Extradition     

Extradition     

Relinquishing  Extraterritorial 

Rights  in  Zanzibar 

Denmark  Extradition 

Japan Copyright 

Roumania Trademarks 

Great  Britain  .  .  Extradition 

Great  Britain .  .  .  Boundary  Alaska 

Japan  Extradition,  Supplementary .  .  . 

Mexico  Rio  Grande  Waters  . 


Signed. 

October  8.  1903  .  . 
November  18,  190,3. 
January  18,  1904. 
March  15,  1904.  .  . 

May   22,    1903 

January  20.  1904. 
December  27,  1903. 

May   25,    1904 

August  9,  1904.  .  . 
December  10,  1904 

February  25,  1904 
November  6,  1905. 
November  10,  1905 
March  18-31,  1906 

April  12,  1905 

April  21,  1906.  .  .  . 
May  17,  1906.  .  .  . 
May  21,  1906 


Proclaimed. 

January  13,  1904. 
February  26,  1904. 
May   31,    1904. 
May  9,  1904. 
July  2,    1904. 
July  2,    1904. 
September    30,    1904. 
May  12,  1905. 
June  28,  1905. 
April  6,  1905. 

Tune  12,  1905. 
February  19,  1906. 
May  17,  1906. 
June   25,    1906. 
February  12,  1907. 
August  21,  1906. 
September  26,  1906. 
January   16,    1907. 


INTEENATIONAL  ACTS  AND  CONVENTIONS. 

Subject.  Proclaimed. 

Establishing  International  Bureau  of  Weights   and  Measures September  27,  1878. 

Amelioration  of  the  Condition  of  the  Wounded  in  Time  of  War.  .  .  .         July  26,  1882. 

Protection  of  Submarine  Cables May  22.  1885. 

International  Protection  of  Industrial  Property .'....         June   11,    1887. 

International  Exchange  of  Official  Documents,  Scientific  and  Literary 

Publications    January     15,     1889. 

Immediate  Exchange  of  Official  Journals,  Parliamentary  Annals,  and 

Documents January     15,     1 

International   Union    for   the    Publication    of   Customs   Tariffs December  17,   1890. 

General  Act  for  the  Repression  of  African  Slave  Trade April  2,   1892. 

Supplementary  Convention   as   to   Expenses   of   International   Bureau 

for  Protection  of  Industrial   Property June  22,   1 

Adhesion   of   United    States    to    Brussels    Convention    for    Regulation 

of  Importation  of  Spirituous  Liquors  into  Africa February    6.    1 

Final  Protocol  Between  China  and  Other  Powers,  Fixing  Indemnity 

to  be  Paid  by  China  on  Account  of   Uprising  Against  Foreigners 

in  1900 September  7,  1901.3 

Convention  for  Pacific   Settlement  of  International  Disputes,    Signed 

at  The  Hague  July  29.  1899 '. November   1,    1901. 

Convention  for  the  Adaptation  to  Maritime  Warfare  of  the  Principles 

of    the    Geneva    Convention    of   August    22,    1864,    Signed    at    The 

Hague  July  29.   1899 November    1,    1901. 

Declaration   as   to   Launching  of   Projectiles   and   Explosives,    Signed 

at   The   Hague   July  29,    1899 November   1,    1901. 

Convention  with  Respect  to  the  Laws  and  Customs  of  War  on  Land, 

Signed  at  The  Hague  July  29,   1899 April  11,   1902. 

Additional   Act   Concluded  at  Brussels  for  the  Protection  of   Indus- 
trial Property August  25,   1902. 

Arbitration  of  Pecuniary  Claims March   24,    1905. 

a  Signed.     Protocol  not  proclaimed. 


INDEX. 


[References  are  to   Sections.] 

Abandonment  of  possession  by  Indians,  382. 
Abatement,  alien,  incapacity  of,  to  be  raised  by,  228. 

plea  of  when  extradited  on  one  charge  and  arrested  on  another,  337. 
Abductions,  Canadian  authorities  offering  to  restore  prisoners,  313. 

territorial  waters  of  another  state  cannot  be  invaded,  313. 
Abrogation.     See  Repeal;   Acts  of  Congress;   Construction  of  Treaties,  etc. 

of  treaty  by  act  of  Congress  must  clearly  appear,  182. 
Accessories,  fugitives  extradited  as,  may  be  tried  as  principals,  336. 
Acknowledgments  by  consuls,  458. 

deputy  consul-general  can  take,  448. 
Acquisition  of  Territory.     See  Cession,  Treaties  of. 

cession,  by  treaties  of,  267. 

incorporation  of  ceded  territory  prevented,  294. 

inhabitants,  relations  of  not  changed,  268. 

population,  wishes  of  not  consulted,  270. 

war,  power  by,  268. 
Acts  of  Congress,  abrogation  of  treaty  by,  must  clearly  appear,  182. 

admitting  state  revoking  right  of  Indians  to  hunt,  170. 

applicable  to  Indians,  385. 

building  bridge  over  Willamette  River  does  not  violate,  174. 

Chinese  exclusion  cases,  185-193. 

conflicting  with  treaty  of  cession,  289. 

head  money  cases,  175. 

immigration  relating  to,  175. 

modified  by   treaties  with  Indians,   171. 

reconciliation  with  treaty,  176. 

rule  as  to  repeal  of  statutes  by  implication,  184. 

repeal  of  treaty  by  implication  not  favored,  178. 

subsequent  will  repeal  treaty,  167. 

treaty  equivalent  to,  167. 

Adams,  Samuel,  comments  of,  on  treaty  power,  17. 
Administration  of  Estates,  consuls  entitled  to  by  treaty,  202,  452. 

right  of,  conferred  by  most  favored  nation  clause,  131. 

(799) 


800  INDEX. 

[References  are  to  Sections.] 

Admiralty,  jurisdiction  of  not  taken  away  by  treaties  as  to  seamen,  455. 
Admission  of  State,  collective  naturalization  by,  469. 
Affidavits  by  consuls,  458. 

false,  used  to  obtain  return  of  prisoner,  312. 
African  Slave  Trade,  amendment  to  treaty  concerning,  64. 
Alabama  Claims,  award  under  assignable,  571. 

treaty  of  settlement  of,  Appendix,  page  675. 
Alaska,  acquisition  of  under  treaty  power,  268. 

attacks  on  Chinese  in,  524. 

convention  ceding,  Appendix,  page  743. 

inhabitants  of  before  cession,  becoming  citizens,  295. 

modus  vivendi  as  to  boundary,  70. 

purchase  of,  83. 

Algiers,  treaties  in  force,  Appendix,  page  610. 
Aliens,  abatement,  to  raise  plea  of  incapacity,  228. 

assignment  of  claim  against  government,  570. 

attainder  for  treason,  262. 

bound  by  same  criminal  procedure  as  citizen,  211. 

California,  provisions  of  constitution  as  to  escheats,  228. 

cannot  enjoin  attorney  general  of  a  state  from  enforcing  payment  of 
taxes,  559. 

children  of,  born  in  United  States,  American  citizens,  471. 

claim  of  against  government  for  injuries  by  private  parties,  575. 

compulsory  military  service  of,  462,  463. 

conveyance  made  upon  secret  trust,  225. 

covenant  not  to  rent  property  to  Chinaman,  217. 

Declaration  of  Independence,  immigration  after,  256. 

descent,  acquiring  title  by,  226. 

directors,  in  corporations  may  become,  229. 

disability  to  inherit  removed  by  treaty,  248. 

employment  of  Chinese  by  corporation,  198. 

employment  of  on  public  works,  201. 

every  nation  may  exclude  or  expel,  186. 

excluded  from  suing  under  abandoned  and  captured  property  act,  558. 

expatriation  of,  459-471. 

foreign  corporations  are  not  subjects,  296. 

foreign  corporation  purchasing  stock  of  local  corporation,  224. 

foreign  corporation  subjecting  funds  in  state  to  payment  by  attach- 
ment, 161. 

fourteenth  amendment  applies  to,  195. 

" goods"  not  including  "lands"  in  treaty,  249. 

Illinois,  inheritance  in,  243. 

inheritable  blood,  has  none,  229. 

Kentucky,  do  not  take  by  descent  in,  250. 

Kentucky,  laws  of  alienage  in,  overcome  by  treaty,  251. 

labor  of,  on  public  works,  200,  201. 


INDEX.  ,  801 

[References  are  to   Sections.] 
Aliens,  lapse  of  time  precluding  claim  of  heir,  252. 

license  for  the  privilege  of  mining,  239. 

Maryland,  laws  of  overcoming  treaty,  253. 

Massachusetts,  laws  of  overcome  by  treaty,  254. 

may  maintain  ejectment  or  partition,  228. 

Mexico,  inheriting  under  laws  of,  226. 

mortgagee,  title  of,  protected  by  treaty,  236. 

native-born  citizen,  taking  from,  258. 

naturalization  of,  459-471. 

New  York,  laws  of  superseded  by  treaty,  256. 

no  inheritable  blood  in,  228. 

North  Carolina,  laws  of  overcoming  treaty,  260. 

Pennsylvania,  laws  of  overcoming  treaty,  261. 

personal  property,  right  to  inherit,  229. 

Porto  Eico,  inhabitants   of,  295. 

property  includes  right  to  labor,  200. 

prosecution  of  claims  in  court  of  claim,  584. 

protected  by  fifth  and  sixth  amendments,   196. 

rents,  enjoying  as  heirs,  259. 

resident  heirs,  having  same  rights  as,  259. 

right  of  consuls  to  administer  in  estates  of,  202. 

right  of  inheritance  affected  by  treaty,  220-266. 

right  to  hold  land  under  Mexican  law,  222. 

right  to  sue  for  death  of  relative,  215. 

Virginia,  laws  of  subject  to  treaty,  266. 

vested  remainders  included  in  lands,  254. 

Virginia,  statute  of  relating  to  escheats,  228. 

sale  of  interest  in  estate,  232,  233. 

Scotland,  natives  of  prior  to  Eevolution  prima  facie  not,  264. 

South  Carolina,  laws  of  overcome  by  treaty,  263. 

special  rights  given  to  American  citizens,  214. 

statutes  removing  disability  of  not  retroactive,  227. 

suing  in  courts,  218. 

Tennessee,  laws  of  subject  to  treaty,  264. 

title  once  vested  not  devested,  234. 

transitory  actions  in  court  by,  219. 

treaty    displacing    power    of    court    to    appoint    attorney    for    absent 
heirs,  202. 

Waldeck,  citizens  of,  affected  by  treaty  with  Prussia,  250. 

Wiirttemberg,  treaty  with,  allowing  time  to  sell,  257. 

widow  of,  as  citizen,  may  have  protection  of  government  in  presenta- 
tion of  claim,  568. 
Allegiance,  American  doctrine  of,  461. 

perpetual,  460. 

Treaties — 51 


802  INDEX. 

[References   are  to    Sections.] 

Ambassadors.     See,  also,  Consuls. 

appointment  of,  397. 

courts  bound  by  recognition  of  President,  395. 

exempt  from  jurisdiction  of  the  laws,  399. 

mechanic's  lien  law  not  exempt  from,  399. 

parol  evidence  to  prove  appointment  of,  396. 

power  to  send,  attribute  of  sovereignty,  165. 

privileges  of,  399. 

servant  of,  exempt  from  laws,  399. 

should  not  appeal  to  the  press,  395. 

should  not  interfere  in  legislation,  394. 

witnesses,  distinction  between  and  consuls,  420. 
Amendments,  adding  declaration,  65. 

by  Senate,  63,  64. 

declaration  for,  interpretation  of  treaty,  time  of  taking  effect,  67-88. 
Amendments  to  Constitution.     See  Fifth  Amendment;   Sixth  Amendment; 

Tenth  Amendment;  Fourteenth  Amendment. 
Anarchists,  attempt  on  life  of  President,  334. 

bound  by  same  criminal  procedure  as  citizens,  211. 

not  considered  political  offenders  in  extradition  treaties,  335. 
Appeal,  court  of  claims,  590. 

proper  procedure  to  review  ruling  in  habeas  corpus,  354. 
Appropriation,  Congress  under  moral  obligation  to  make,  82. 

hanging  of  Mexican  in  California,  543. 

killing  of  Italians  in  Colorado,  533. 

lynching  of  Italians  at  Hahnville,  538. 

pursuant  to  treaty,  81. 

Appropriation  of  Money,  treaty  requiring,  not  perfect,  185. 

See  Claims. 

wounding  British  subject  at  New  Orleans,  542. 
Archives  of  consuls  privileged,  426. 

Argentine  Republic,  amendment  of  treaty  with  as  to  extradition  of  citi- 
zens, 323. 

treaty  allowing  administration  on  estates,  202. 

treaties  in  form,  Appendix,  page  611. 
Arizona,  private  claim  under  Mexican  grant,  282. 

statutes  of  as  to  public  lands  in,  293. 
Arrest,  Alexander  McLeod,  506. 

extradited  prisoner  on  prior  judgment  of  conviction,  334. 

extradition,  offense  committed  during  trial,  341. 

of  fugitive  on  British  war  vessel,  348. 

of  fugitives  on  telegraphic  information,  348. 

marshal,  in  extradition  to  take  prisoner  to  nearest  magistrate,  348. 

provisional,  in  extradition  proceedings,  349. 

reparation  for  false  or  irregular,  582. 


INDEX.  803 

» 

[References   are  to   Sections.] 

Arson,  extradition  for,  variance  in  indictment,  338. 

interpretation  of  according  to  law  of  both  countries,  320. 
Ashburton  Treaty,  construction   of  bridges  not  prevented  by,   174. 
Assassination,  treaty  with  Salvador  defining,  319. 
Assault,  malicious,  by  captain  of  vessel,  federal  courts  have  jurisdiction, 

448. 
Assignment,  award  against  government  constitutes  property,  571. 

claims  against  government,  570. 

claim  of  bankrupt  against  foreign  government,  572. 

state  suing  another  state  as  assignee  of  bonds,  573. 
Asylum,  treaties  of  extradition  do  not  guarantee  fugitives  from  justice  an, 

312. 
Attachment,  fund  in  state  not  subject  to,  to  pay  debt  of  former  corporation, 

161. 
Attainder,  confiscation  of  estate  for,  262. 

treaty  paramount  to  state  laws,  262. 
Attorney,  district,  reimbursement  for  expenses  in  extradition  proceedings, 
365. 

fees  of  in  extradition,  to  be  paid  by  demanding  government,  364. 

power  of  court  to  appoint  for  absent  heirs  displaced  by  treaty,  203. 

President  may  authorize  employment  of  in  extradition,  357. 
Austria-Hungary,    forgery    includes    crime    of    uttering    forged    papers,    in 
treaty  with,  319. 

suspension  of  tariff  act  as  to,  73,  note. 

treaty  of  naturalization  with,   465. 

treaties  in  force,  Appendix,  page  613. 
Award,  retrial  of,   124. 

right  of  property  in,  124. 

under  claims  commission,  presenting  federal  question,  110. 

under  treaty,  assignability  of,  571. 

Bacon,  Senator,  debate  as  to  Japanese  attending  public  schools,  149,  note. 
Baden,   treaty   of   naturalization  with,  464. 

treaties  in  force,  Appendix,  page  615. 
Bail,  no  provision  for  in  extradition  treaties,  344. 

Bankruptcy,  assignee  takes  claim  of  bankrupt  against  foreign  government, 
572. 

outstanding  title  in  assignee  in,  no  federal  question  presented,  107. 

sale  of  claim  of  bankrupt  against  foreign  government,  572. 
Bavaria,  treaty  effected  with,  effect  on  alienage,  248. 

treaty  of  naturalization  with,  464. 

treaties  in  force,  Appendix,  page  615. 
Belgium,  attempt  against  head  of  government  not  a  political  offense,  334. 

extradition  for  obtaining  property  by  false  pretenses,  368. 

international  copyright,  benefit  of  extended  to,  72. 

treaties  in  force,  Appendix,  page  617. 


804  INDEX. 

[References  are  to   Sections.] 

Benson,  John  A.,  Denmark  surrendering  in  absence  of  treaty,  304. 
Bering  Sea,  convention  relating  to  fur  seals  in,  Appendix,  page  677. 
Beveridge,  Senator,   debate  as  to  Japanese  attending  public   schools,   149, 

note. 

Biens,  word  construed,  246. 

Bill  of  Attainder,  banishment  or  exile  equivalent  to,  187. 
Bolivia,  treaties  in  force,  Appendix,  page  623. 
Bonds,  forgeries,  315. 

interest  not  payable  on  in  North  Carolina,  579. 

suit  by  state  as  assignee,  573. 
Borneo,  treaties  in  force,  Appendix,  page  624. 
Boundaries,  Alaska,  modus  vivendi  as  to,  70. 

between  two  states,  43. 

controversies  at  time  of  adoption  of  Constitution,  44. 

Canada  and  Alaska  settled  by  protocol,  71. 
.  establishing  between  Virginia  and  Tennessee,  41. 

grants  made  by  states,  275. 

South  Dakota  and  Nebraska,  45. 

Virginia  and  Tennessee,  127. 
Bowman  Act,  appeal  to  supreme  court  not  provided  for,  586. 

diplomatic    claim   presented    by    a   foreign    government,    586. 

liberal  construction  of,  586. 

letters  and  ex  parte  statements  excluded,  586. 

petition  must  state  same  cause  of  action  as  that  transmitted  to  cour 
586. 

provisions  of,  585. 

strict  rules  of  pleading  not  enforced,  586. 
Boxer  Troubles,  protocol  concerning,  Appendix,  page  784. 
Boycott,  responsibility  of  government  for,  544. 
Brazil,  attempt  against  life  of  head  of  government  not   a  public  offens 
334. 

suspension  of  tariff  act  as  to,  73,  note. 

treaties  in  force,  Appendix,  page  624. 
Bremen,  treaties  in  force,  Appendix,  page  626. 
Bribery,  contract  to  bribe  foreign  officer  not  enforceable,  445. 

extraditable  in  treaties  with  Mexico  and  Netherlands,  368. 

extradition  of  Charles  Kratz  for,  321. 

need  for  more  effective  treaties  covering,  321. 

supplemental  convention  with  Mexico  relating  to,  321. 
Bridges,  Ashburton  treaty  does  not  prevent  construction  of,   174. 

building  over  Willamette  River  does  not  validate  act  of  Congress,  17 

over  navigable  stream  when  not  a  nuisance,  174. 
Brunswick,  treaties  in  force,  Appendix,  page  626. 
Burden  of  Proof  on  Chinese  under  exclusion  acts,  191. 
Butte,  claims  of  Japan  for  boycott  of  subjects  at,  544. 


INDEX.  ,  805 

[References  are  to   Sections.] 

Calhoun,  John  C.,  views  on  difference  between  delegation  of  treaty  power 

and  legislative  power,  138. 
California,  acquisition  of  under  treaty  power  and  war  power,  268. 

admitted  on  equal  terms  with  other  states,  172. 

attacks  on   Chinese  in,  524. 

constitution  and  statutes  of,  as  to  public  schools,  147. 

constitutional  provision  as  to   employment  of  Chinese  by  corporation, 
198. 

constitutional  provisions  as  to  escheat,  227. 

hanging  of  Mexican  in,  543. 

inhabitants  of,  before  cession  becoming  citizens,  295 

lands  occupied  by  Indian  tribes  part  of  public  domain,  383. 

license  of  Mongolians  mining,  240. 

Mexican  grants  in,  171. 

Mexican  law  allowing  aliens  to  inherit,  226. 

Mexican  titles  in,  after  treaty,  290-292. 

perfected  claims,  under  Mexican  grant,  necessity  of  presenting,  286. 

private  property  not  impaired  by  cession  of,  278. 

treaty  of  Guadalupe  Hidalgo  protecting  rights,  274. 

treaty  superseding  laws  in,  239-241. 
Canada,  boundary  line  between  and  Alaska  settled,  71. 

disavowing  action  of  officers  abducting  prisoners,  313. 

judgments  rendered  in,  effect  of  in  United  States,  443. 

request  of,  for  permission  to  bring  extradited  person  through  United 

States,  362. 

Captain,  maliciously  assaulting  seaman,  448. 
Capture,  consul  cannot  exempt  vessel  from,  449. 
Carmack,   Senator,   debate   as   to   Japanese   attending   public   schools,    149, 

note. 

"Caroline,"  Steamer,  destruction  of,  responsibility  of  government  for,  505. 
Cattle,  taxation  of  in  Oklahoma,  171. 
Central  America,  treaties  in  force,  Appendix,  page  626. 
Certiorari,  resignation  of  political  agent  of  government  as  bar  to,  400. 
Cession,  acquisition  of  territory,  268. 

Arizona,  statutes  of  as  to  public  lands,  293. 

California,  Mexican  titles  in,  after  treaty,  290. 

California,  private  property  in,  not  impaired  by   cession,  278. 

ceded  territory,  inhabitants  of,  as  citizens,  295. 

ceded  territory,  prevention  of  incorporation  into  United  States,  294. 

Chile,  contention  of  government  of,  271. 

Congress,  act  of  in  conflict   with   treaty,   289. 

Congress,  acts  of  as  to  titles,  291,  293. 


806  INDEX. 

[References  are  to   Sections.] 

Cession,  Congress,  subsequent  acts  of,  277. 
copyrights,  279. 

decree  has  effect  of  judgment,  292. 
delegation  to  judicial  department,  282. 
executory  rights  included  in  term  ' '  property, ' '  278. 
foreign  corporations  not  citizens,  296. 
Gilbert  Islands,  272. 

grant,  as  affected  by  homestead  entries,  276. 
grant,  collateral  attack,  285. 
grant,  deemed  abandoned,  284. 

grant,  made  by  states  in  case  of  disputed  boundaries,  275. 
grant,  perfected  under  Spanish  authority  in  Louisiana,  277. 
Hawaiian  Islands,  population  not  consulted,  270. 
international  laws,  rules  of,  271. 

Japan,   objecting   to    acquisition   of   Hawaiian   Islands,    270. 
land  commission,  perfected  claims  before,  286. 

laws,  ceded  territory  retains,  until  contrary  provision  made,  277. 
Louisiana,  acquisition  of  did  not  make  incomplete  titles  complete,  283. 
measuring  land,  287. 

Mexican  grant  unassailable  until  survey  made,  282. 
Mexican  grant,  collateral  attack  on  not  permitted,  285. 
Mexican  titles  in  California  after  treaty,  290. 
New  Mexico,  statutes  of,  as  to  public  lands,  293. 
Paris,  treaty  of  as  to  citizens  of  Porto  Bico,  295. 
patents,  279. 

political  department  to  provide  mode,  281. 
population,  wishes  of  not  to  be  consulted,  270. 
Porto  Eico,  status  of  inhabitants  of  left  to  Congress,  294. 
' '  property, ' '  definition  of,  276. 
property  includes  every  species  of  title,  278. 
property  rights,  what  are,  276. 

Pueblo  Indians,  title  of  not  defeated  by  change  of  sovereignty,  277. 
rights  of  claimant  secured  by  political  department,  281. 
Rio  Grande,  effect  of  treaty  on  dam  in,  297. 
riparian  rights  of  lot  owners,  277. 
Samoan  Islands,  272. 

sovereignty  passes  and  not  property,  260. 
tide  lands  previously  granted,  274. 
titles  complete  at  time  of  cession,  288. 
titles  incomplete  not  made  complete,  283. 
titles  not  devested,  273. 
trademarks,  279. 

trademarks,  loss  of  by  laches,  280. 
treaty  ceding  Louisiana,  Appendix,  page  652. 
Utah,  statutes  of,  as  to  public  lands  in,  293. 
Wyoming,  statutes  of,  as  to  public  lands,  293. 


INDEX.  ,  807 

[References  are  to   Sections.] 
Cession,  Treaties  of.     See  Cession. 

Cherokees,  reservations  to  head  of  Indian  family,  264. 
Chicago  Anarchists'  Case,  treaty  rights  claimed  in,  211. 
Chile,  extradition  from,  not  requested  in  absence  of  treaty,  303. 

international   copyright,   benefit   of   extended   to,   72. 

international  law,  contention  of,  271. 

irregular  prosecution  of  American  citizen  in,  489. 

service  of  foreign  residents  in  temporary  civic  guard,  462. 

treaties  in  force,  Appendix,  page  627. 

China,    allowances    for    injuries    to    Chinese    residents,    524.      See    Chinese; 
Chinese  Exclusion. 

American  demands  on,  516. 

claims  of,  for  boycott,  544. 

closed  to  residence,  519. 

fourteenth  amendment  applies  to  subjects  of,  195. 

indemnity  for  certain  attacks  on  Chinese,  524. 

indemnity  made  by,  for  injuries,  516. 

no  reciprocity  intended  in  treatment  of  citizens,  520. 

protocol  with,  71. 

system  of  American  government  known  to,  521. 

views  of  Senator  Edmunds  on  appropriation  for  attacks  on  Chinese,  523. 

treaty  with,  invalidates  covenant  not  to  rent  land  to  Chinaman,  217. 

treaties    in    force,    Appendix,    pages    629-635. 

United  States  court  for,  406. 

United  States  court  for,  what  law  to  prevail,  407. 

United  States  court  for,  obtaining  money  by  false  pretenses,  410. 
Chinese,  attack  on,  at  Kock  Springs,  514-523. 

attacks  on,  at  Denver,  511. 

covenant  not  to  rent  property  to,  217. 

employment  of  by  corporation,  state  constitution  invalid,  198. 
Chinese  Exclusion,  abrogation  of  treaty  must  clearly  appear,  181,  182. 

aliens  may  be  expelled,  186. 

certificate  of  Chinese  government  as  to  mercantile  character,  191. 

children  born  in  the  United  States,  187. 

conclusiveness  of  decision  of  department,  192,  193. 

construction  of  laws,  191. 

hard  labor  law  unconstitutional,  191. 

hearing  arbitrarily  denied,  193. 

loss  of  certificate  by  theft,  191. 

neglect  to  apply  for  certificate,  189. 

retrospective   operation,   189. 

right  to  return,  189. 

shipping  on  American  vessel  for  round  voyage,  189. 

summary  information,  instead  of  indictment,  191. 
Chronological  List,  treaties,  Appendix,  page  791. 
Circuit  Courts,  concurrent  jurisdiction  with  court  of  claims,  588. 


808  INDEX. 

[References  are  to   Sections.] 
Citizens,  alien   has  same  power  as,  to  hold  personal  property,  229. 

appointment  of,  as  consuls,  398. 

Argentine  Eepublic,  amendment  of  treaty  with,  as  to   extradition  of, 
323. 

cannot  expatriate  themselves  during  war,  471. 

citizenship  matter  of  defense,  323. 

claim  of  Edward  MacMurdo  against  Portugal,  567. 

committing  murder  in  Mexico,  extradition  refused,  308. 

compulsory  military   service   of  foreign  residents,  462. 

conduct  of,  may  forfeit  claim  to  national  protection,  565. 

declaration  of  intention  does  not  make,  323,  567. 

discretion  in  delivering  under  extradition  treaty,  326. 

embraced  by  term  ' '  persons, ' '  324. 

extradition  of,  323. 

German  city  cannot  surrender  to  German  state  an  American  citizen,  329. 

ceded  territory,  inhabitants  of,  295. 

foreigners  debarred  from  suing  under   abandoned  and   captured  prop- 
erty act,  558. 

government  will  interfere  only  on  behalf  of,  567. 

government  may  refuse  to  subject  to  abhorrent  form  of  trial,  323. 

Indians  becoming,  386. 

in  service  of  Khedive  of  Egypt,  entitled  to  national  protection,  565. 

Italian  Penal  Code  forbids  extradition  of,  324. 

judgments  conclusive  between,  435. 

Mexico,  foreigner  acquiring  real  estate  in,  becomes  citizen  of,  326. 

Mexico  willing  to  deliver,  on  promise  of  reciprocity,  326. 

money  received  from  foreign  governments  in  trust  for,  578. 

must  seek  redress  through  their  government  for  claims  against  another 
government,  557. 

naturalization  of,  has  no  retroactive  effect,  569. 

naturalized,  entitled  to  same  protection  as  native-born,  461. 

not  exempted  from  surrender  by  international  law,  324. 

order  admitting  an  alien  to  citizenship,  as  order  of  court,  467. 

political  offenses,  extradition  for,  denied,  328. 

political  offenses,  instances  of,  330. 

Porto  Rico,  inhabitants  of,  295. 

setting  aside  certificate  of  citizenship,  468. 

surrender  of,  in  extradition,  when  of  another  country,  327. 

Switzerland,  delivering  under  extradition  treaties,  325. 

United  States  refusing  to  deliver  to  Mexico  under  extradition  treaty, 
325. 

United  States  unwilling  to  make  treaty  to  exclude  from  extradition,  325. 

widow  succeeding  to  her  alien  husband  as  heir,  entitled  to  governmen- 
tal action  in  prosecution  of  claim,  568. 

yielding  to  mode  of  trial  usual  in  foreign  country,  323. 
Civil  Process,  prisoner  in  jail  on,  released  in  extradition  proceedings,  360. 


INDEX.  809 

[References  are  to   Sections.] 
Claims    against  Portugal  for  seizure  of  ra'ilroad,  567. 

aliens  cannot  enjoin  attorney  general  from  collecting  taxes,  559. 

arising  on  contracts,  generally  no  interference,  582. 

arising  from  breach  of  neutrality  laws,  not  presented,  568. 

assignee  in  bankruptcy  takes  claim  of  bankrupt  against  foreign  govern- 
ment, 572. 

assignment  of,  against  government.  570. 

assignability  of  award  under  treaty,  571. 

based  on  acts  against  public  policy,  566. 

by  United  States  for  mob  violence,  480-482. 

Bowman  Act,  585. 

citizen,  declaration  of  intention,  does  not  make,  567. 

citizens,  government  will  interfere  only  in  behalf  of,  567. 

citizen  must  seek  redress  through  his  government,  557. 

courts  of  South  American  republics,  574. 

conduct  of  citizen,  may  forfeit  claim  to  national  protection,  565. 

court   of   claims,   583,   584. 

damages,  speculative  or  exorbitant,  563. 

default  not  attributed  to  government,  580. 

destruction  of  French  privateers  at  Savannah,  497. 

discretion  of  government  in  presenting,  563. 

destruction  of  the  steamer  l '  Caroline, ' '  505. 

discrimination  against  American  citizens,  577. 

Edward  MacMurdo  against  Portugal,  567. 

fair  examination  demanded  without  discrimination  as  to  nationality,  582. 

foreigners  excluded  from  suing  under  abandoned  and  captured  property 
act,  558. 

fraud  in,  will  justify  government  in  refusing  to  present,  566. 

government  has  control  of,  when  once  presented,  563. 

government  will  not  recognize  a  contract  for  services  to  set  aside  a 
treaty,  566. 

interest  allowed  to  state  for  money  borrowed  from  canal  fund,  580. 

interest  on,  not  payable  by  government,  579. 

interest  not  payable  on  internal  revenue  taxes  paid  without  protest,  580. 

jurisdiction  of  district  and  circuit  courts,  588. 

law  of  place  governs  contracts,  579. 

moneys  received  from  foreign  governments  in  trust  for  American  cit- 
izens, 578. 

Montijo  controversy,  490. 

New  Orleans  and  Key  West  riots,  500. 

naturalization  has  no  retroactive  effect,  569. 

no  remedy  against  state  for  breach  of  contract,  559. 

one  nation  not  bound  to  assume  the  collection  of,  against  another  na- 
tion, 573. 

one  state  suing  another  as  assignee  of  bonds,  573. 

pending  in  Congress,  Department  of  State  will  not  present,  568. 


810  INDEX. 

[References  are  to   Sections.] 

Claims,  persons  holding  office   under  United  States    cannot  act  as  agent  foi 
prosecution  of,  456. 

Pietro  Ferrara,  for  injuries,  575. 

policy  of  Great  Britain,  564. 

political  department  will  not  consider  when  in  courts,  565. 

presentation  of,  through  Department  of  State,  560-563. 

questions  involving  title  to  real  estate,  581. 

reparation  for  false  or  irregular  arrests,  582. 

resort  to  local  remedies,  573. 

rules  of  Department  of  State,  as  to  mob  violence,  482. 

rules  of  Department  of  State  for  presentation  of  against  other  govern 
ments,  562. 

Shipley,  Dr.,  for  mob  violence,  487. 

Spanish  war  commission,  556. 

suits  by  one  state  against  another  state,  559. 

trespasses  and  evictions  when  subjects  of  diplomatic  intervention,  580 

treaty  of  arbitration  of  Alabama,  Appendix,  page  675. 

treaty  with  Italy  as  basis  of,  575. 

treaty  with  Spain  relinquishing,  555. 

Tunstall,  John  H.,  claim  of,  against  United  States,  576. 

Tucker  Act,  587. 

vessels,  capture  of,  562. 

vessel  in  service  of  foreign  power  renounces  claim  to  protection,  567. 

Wheelock,  John  E.,  for  mob  violence,  483. 

widow,  as  heir  of  alien  husband,  entitled  to  protection  of  government, 
568. 

Wilson,  William,  for  mob  violence,  485. 

Zambrano,  for  mob  violence,  488. 
Clancy,  American  consul  as  witness,  429. 

Clay,  Henry,  views  of,  on  convention  for  suppression  of  slave  trade,  64. 
Cleveland,  President,  message  of,  on  killing  of  Italians  in  Colorado,  531. 

special  message  as  to  attacks  on  Chinese,  522. 
Coast  Vessels,  pilotage  laws  as  to  not  affected  by  most  favored  nation  clause, 

131. 

Codification  of  rules  of  construction  of  treaties,  132. 
Colombia,  responsibility  of,  in  Montijo  controversy,  491. 

treaties  in  force,  Appendix,  page   635-637. 
Colorado,  act  admitting  repealed  treaty  with  Utes,  171. 

construction  of  statute  of,  for  damages  for  death,  215. 

killing  of  Italian  subjects  in,  by  mob  violence,  531. 

statutes  as  to  public  lands  in,  293. 

Colored  Children  may  be  placed  in  separate  schools,  160. 
Comity.     See   Claims;   Mob  Violence. 

delivery  of  fugitives  to  United  States,  300. 


INDEX.  811 

[References  are  to   Sections.] 
Comity,  extradition  not  asked  as  an  act  of,  301. 

fund  within  state,  not  subject  to  payment  of  indebtedness  due  foreign 

corporation,  161. 
Jommissioner,  Federal  circuit  court  may  act  as  magistrate  in  extradition 

proceedings,  344. 

fees  of,  in  extradition  proceedings,  366. 

may  grant   continuance  in  extradition  proceedings,  344. 
Common  Law,  municipal  corporations  not  liable  for  injuries  by  mobs  at,  545. 
Compacts  Between  States,  boundaries  between  two  states,  43. 

boundary  between  South  Dakota  and  Nebraska,  45. 

clause  of  Constitution  as  to  compacts  with  other  states,  39. 

Constitution,  to  what  compacts  applies,  42. 

Constitution,  controversies  at  time  of  adoption  of,  44. 

construction  of  compacts  between  two  states,  46. 

disputed  boundary  between  United  States  and  state,  47. 

extent  and  meaning  of  clause,  41. 

mutual  estoppel,  creation  of,  50. 

nature  of,  that  may  be  made,  40. 

property,  compacts  relating  to,  53. 

subsequent  legislation,  approval  of  Congress  implied  from,  49. 

suits  by  state  to  recover  penalties,  48. 

taxations,  contract  of  state  to  exempt  property  from,  51. 
Complaints  in  extradition  proceedings,  based  on  information  and  belief,  345. 

in  extradition  proceedings,  precision  of  indictment  not  required,  346. 

in  extradition  proceedings,  German  imperial  code  superseding  laws   of 
Prussia,  345. 

in  extradition  proceedings,  request  of  government  when  to  appear,  345. 

in  extradition  proceedings,  sufficiency  of,  345. 

in  extradition  proceedings,  sufficient  if  equal  to  preliminary  complaint, 
340. 

in  extradition  proceedings,  sufficient  if  it  appears  complainant  is  acting 
for  foreign  government,  345. 

in  extradition  proceedings  verified  by  consul  of  foreign  government,  345. 
Conditions  as  to  treaty  taking  effect  on,  65. 

Condonation,  surrender  in  extradition  not  refused  on  account  of,  359. 
Confederate  States,  Confederate  bonds,  investment  of  guardian  in,  27. 

Confederate  bonds,  discharge  of  executor  investing  in,  28. 

contracts  to  aid  the  confederacy  void,  30. 

had  no  legal  existence,  24. 

judgments  of  courts,  when  void,  34. 

laws  in  aid  of  insurrection,  void,  33. 

loyal  owners,  sale  of  property  of,  32. 

ordinance  of  secession  of,  a  nullity,  31. 
Confederation,  weakness  of,  7. 
Confirmation,  titles  in  ceded  territory,  288. 
Confiscation,  consul  cannot  exempt  vessel  from,  449. 


812  INDEX. 

[References  are  to   Sections.] 
Confiscation  Acts,  attainder  for  treason,  262. 

bond,  balance  due  on  recoverable,  261. 

confiscation  perfected  by  lapse  of  time,  261,  266. 

treaty  annulling,  261. 

Virginia,  266. 
Congo,  surrender  of  fugitive  in  absence  of  treaty,  304. 

treaties  in  force,  Appendix,  page  702. 
Congress.     See  Acts  of  Congress. 
Constable,  liable  for  false  imprisonment  for  arrests,  if  consul  has  exclusive 

jurisdiction,  448. 

Constitution.     See    Acts    of    Congress;     Compacts    Between    States,    etc.; 
Statutes. 

address  to  Congress,  20. 

adoption   of,   enabled  treaties   to   be   enforced,   15. 

constructions  to  be  made  in  light  of  common  law,  188. 

escheat,  law   passed  while   proceedings   pending,   constitutional,    225. 

formation  of  federal,  18. 

guaranties  of,  do  not  apply  to  foreign  crimes,  307. 

John  Jay,  comments  of,  21. 

law  imposing  hard  labor  in  Chinese  exclusion,  191. 

legislation  to  enforce  escheats,  225. 

license  on  foreign  miners,  239. 

license  on  Mongolians  mining,  240. 

making  municipal  corporations  liable  for  mob  violence,  552. 

New  York  statute  giving  property  to  one  heir,  void,  258. 

organization  of  federal  constitutional  convention,  19. 

provision  as  to  employment  of  Chinese  by  corporation    void,   198. 

separate  schools  for  colored  children  not  in  conflict  with,  162. 

special  laws  changing  descent,  245. 

state  statutes  of  confiscation,  108. 

supreme  law  of  land,  history  of,  163. 

treaties  in  existence  before,  164-166. 

treaty  cannot  alter,  167. 

"under  authority  of  the  United  States,"  163-166. 

Construction  of  Treaties,  abrogation  by  act  of  Congress  must  clearly  appear, 
182. 

absurd  conclusion  to  be  avoided,  177. 

acts  of  Congress  and  treaty  both  to  be  made  effective,  168. 

act  of  Congress  and  treaty  to  be  reconciled,  176. 

alienage,  removing  disability  of,  not  retroactive,  227. 

as  a  law,  127. 

award,  right  of  property  in,  124. 

by  executive  department,  115. 

California,  constitution  and  statutes  of,  147. 

Congress   may   pass   laws   to    effectuate   treaty,    115. 


INDEX.  813 

[References  are  to   Sections.] 

Construction  of  Treaties,  courts  cannot  question  rights  recognized  by  nation, 
128. 

crime  on  foreign  ship,  jurisdiction  of,  129,  130. 

declaration  of  interpretation,  67. 

delegation  of  legislative  power  and  treaty-making  power,  138. 

" effects,"  meaning  of,  260. 

"embezzlement  of  public  moneys/'  317. 

extension  by  doubtful  construction,  181. 

extent   of   treaty-making  power,   133-152. 

extinguishment  of  treaties  by  tacit  consent,  96. 

extradition,  enumeration  of  certain  offenses  excludes  others,  301,  305. 

extradition  for  violation  of  laws  of  foreign   territory,  307. 

extradition,  right  to,  measured  by  treaty,  308. 

extradition  treaty  using  general  terms,  as  ' '  murder  "  or  '  *  arson, ' '  320. 

extradition,  validity  of  treaty  cannot  be  questioned,  96. 

i '  falsification ' '  in  Mexican  treaty  not  including  l '  forgery  in  third  de- 
gree," 320. 

favorable  to  execution  of  treaty,  121. 

favorable  to  rights  preferred,  126. 

forgery  in  English  law  does  not  include  false  entries  in  books  of  ac- 
count, 318. 

forgery  in  the  third  degree,  320. 

forgery  under  treaty  with  Austria-Hungary  includes  uttering  forged 
papers,  319. 

general  term  used  in  Constitution,  134. 

Indians,  recognition  of  rights  in,  255. 

Indian  treaties  liberally  construed,  390. 

insolvent  laws,  case  not  arising  under,  108. 

instructions   to   diplomatic   officers,    119. 

interpretation  in  spirit  of  good  faith,  116. 

intention  to  be  carried  out,  117. 

in  two  languages,  118. 

in  two  languages,  both  originals,  120. 

judicial   question,   115. 

laws  of  state,  treaty  in  conflict  with,  will  control,  250. 

liberal   construction,    125. 

most  favored  nation  clause,  131. 

omission  of  words  "or  be  punished,"  in  extradition  treaty,  178. 

Panama  canal  zone,  144. 

presumption  that  surrender  was  an  act  of  comity,  where  treaty  silent, 
305. 

protocol  as  to  submarine  cables,  68. 

provision  as  to  enjoyment  of  equal  rights  does  not  require  subjection  of 
fund  to  payment  of  debt  to  foreign  corporation,  161. 

province  of  courts,  94. 

public  schools,  right  to  attend,  145-159. 


814  INDEX. 

[References  are  to   Sections.] 
Construction  of  Treaties,  question  depending  on,  to  be  stated,  114. 

repeal  by  implication,  178,  184. 

repugnant  clauses,  126. 

"residing  in  state,"  243. 

retrospective  operation,  177. 

retroactive  effect  of  extradition  treaties,  321. 

rules  of,  codified,  132. 

Senate,  resolution  of,  controlling  meaning,  69. 

statutes  imposing  liability  on  municipal  corporations  for  mob  violence, 
liberally  construed,  553. 

supreme  court  of  United  States  has  jurisdiction  in  extradition,  if  treaty 
involved,  354. 

tariff  laws  and  treaties,  169. 

technical  meaning  of  Indian  not  to  be  considered,  392. 

title  may  be  determined  when  case  arises  under  treaty,  100. 

treaties  do  not  prevent  special  concessions  to  other  countries,  169. 

two  constructions,  which  preferred,  231. 

two  constructions,  treaty  admitting  of,  121. 

vague  and  indefinite  terms,  122. 

whole  treaty  to  be  taken  together,  123. 
Consuls,  acknowledgments  by,  458. 

acting  as  judges  over  captains  and  crews,  212. 

action  in  discharging  seaman  not  conclusive,  454. 

administration  of  estates,  entitled  to,  202,  452. 

affidavits  by,  458. 

American  as  witnesses,  427-429. 

appeal  in  extradition  proceedings,  355. 

appointment  of,  397. 

archives  of  privileged,  426. 

authority  of,  in   enemy's  country,  449. 

barbarous  and  malicious  assault  on  seamen,  federal  courts  have  juris- 
diction, 448. 

cannot  assume  position  antagonistic  to  government,  446. 

cannot  exempt  vessel  from  confiscation,  449. 

citizens  appointed  as,  398. 

Congress  may  permit  suits  against  in  state  courts,  411. 

commercial  agents  merely,  401. 

concurrent  jurisdiction  in  suits  against,  414. 

consular  regulations  of  the  United  States,  403. 

contract  made  in  official  capacity,  402. 

contract  to  influence  corruptly  officer  of  foreign  government,  445. 

criminal  laws,  violation  of,  by,  404. 

decision  in  cases  of  exclusive  jurisdiction  not  reviewable,  448. 

default  against,  waives  exemption,  415. 

deputy  consul  general  can  take  acknowledgments,  458. 

deserting  seamen,  delivery  to,  under  Kevised  Statutes,  367. 


INDEX.  815 

[References  are  to   Sections.] 

Consuls,  distinction  between  rights  of,  and  resident  foreigners  in  case  of  mob 
violence,  501. 

exemption  from  jury  and  militia  service,  404. 

failure  to  plead  exemption,  412. 

false  imprisonment,  constable  liable  for,  if  consul  has  exclusive  juris- 
diction, 448. 

fees  for  prosecution  of  claim,  456. 

include  "consul-general,"  "vice  consul-general,"  or  "vice-consul,"  458. 

in  eastern  countries,  405. 

instructions  of  Mr.  Hay    to,  430. 

intervention  of,  in  behalf  of  fellow-citizens,  451. 

judicial  notice  of  signature  and  seal,  457. 

jurisdiction  of,  by  treaties,  447. 

not  judicial  officers,  401. 

passport  of,  as  evidence  that  person  has  been  in  foreign  country,  401. 

petition  to  pay  into  treasury  proceeds  of  property  libeled,  451. 

possess   no   authority  to   require   masters  to   carry   persons   accused  of 
crime,  357. 

power  of,  to  commence  suit  in  rem,  450. 

property  of,  injured  through  negligence  of  foreign  government,  473. 

reclamation  assessment,  suits  against,  for,  413. 

resignation  of,  as  bar  to  certiorari,  400. 

rights  and  privileges  of,  401. 

shipping  and  seamen,  453. 

subpoena  in  behalf  of  prosecution,  422. 

subject  to  local  laws,  401. 

suits  against,  411. 

suits  by,  in  state  court,  412. 

suits  against,  concurrent  jurisdiction  of  courts,  414. 

trading  liable  to  process,  402. 

United  States  court  for  China,  406. 

verifying  complaint  for  extradition,  345. 

vice-consuls,  appointment  of,  397. 

witnesses  before  courts-martial,  432. 

witnesses,  compulsory  attendance  as,  416-425. 

witness,  facts  within  personal  knowledge  of,  431. 

witness,  distinction  between  and  ambassadors,  420. 

witness,  information  received  in  official  capacity,  432. 

witness,  subpoena  by  a  state  court,  425. 

mi-general,  included  by  term  « '  consul, ' '  458. 
Continental  Congress,  committee  to  prepare  plan  of  treaties,  4. 

meeting  of,  23. 

treaties  under,   8. 

treaty  obligations,  unable  to  guarantee  observance  of,  9. 

want  of  judicial  power  to  enforce  treaties,  11. 
Continuances  in  extradition  proceedings,  344. 


816  INDEX. 

[References  are  to   Sections.] 

Contractor,  crime  to  employ  alien  as  laborer  on  public  works,  201, 
Contracts  by  consuls  in  their  official  capacity,  402. 

See  Claims. 

corruptly  influencing  officer  of  foreign  government,  445. 

confederacy,  in  aid  of,  void,  30. 

court  of  claims  considers  law  of  place  where  contract  was  made,  583. 

government  generally  will  not  interfere  in  claims  arising  on,  582. 

fair  and  impartial  examination  demanded  without  discrimination  as  to 
nationality,  582. 

law  of  place  governs,  579. 

treaties  as,  115,  168. 
Convicts,  power  of  state  to  exclude,  190. 
Copyright,  international,  reciprocal  rights  extended,  72. 

protected  under  treaties  of  cession,  279. 
Corea,  treaties  in  force,  Appendix,  page  703. 
Corporations,  directors,  aliens  may  become,  229. 

employing  Chinese,  state  constitution  invalid,  198. 

foreign  courts  may  refuse  to  subject  fund  to  payment  by  attachment, 
161. 

foreign,  purchasing  stock  of  local  corporation,  224. 

foreign,  not  subjects,  296. 

funds  of  private  do  not  constitute  public  moneys,  317. 

nonresident  stockholders  can  hold  shares,  229. 
Costa  Rica,  international  copyright,  benefit  of,  extended  to,  72. 

protocol  as  to  interoceanic  canal,  71. 

surrendering  fugitive  in  absence  of  treaty,  304. 

treaties  in  force,  Appendix,  page  638. 

Counsel,  Department  of  State  will  not  hear  in  opposition  on  demand  for 
requisition,  342. 

fees  of,  in  extradition  to  be  paid  by  demanding  government,  364. 

President  may  authorize  employment  of  in  extradition  proceedings,  357. 
County,  payment  of  expenses  by  extradition  proceedings,  366. 
Coupons,  false  certificate  to  invoices  inclosing,  317. 

when  forgeries,  315. 
Court  of  Claims,  aliens  may  prosecute,  where  reciprocity  granted,  584. 

cannot  establish  jurisdictional  requirements,  584. 

claims  barred  within  six  years,  584. 

implied  contract  to  pay  for  land  appropriated  to  public  use,  584. 

jurisdiction  of,  583. 

law  of  place  where  claim  accrued  considered,  583. 

lessee  dispossessed  before  expiration  of  term,  583. 

may  refuse    to  subject  fund  to  payment  of  debt  to  foreign  corporation, 
161. 

no  jurisdiction  of  a  claim  against  District  of  Columbia,  583. 

receiver  appointed  by  court  of  chancery  claiming  fund,  584. 

suit  to  recover  judgment  rendered  by  court  of  commissioners  of  Alabama 
claims,  583. 


INDEX.  817 

[References  are  to   Sections.] 
Courts,  administration  in  estates  given  to  consuls  by  treaty,  202. 

admiralty,  jurisdiction  of,  not  taken  away  as  to  American  seamen  by 
treaties,  455. 

attorney  for  absent  heirs,  right  to  appoint  by  courts  displaced,  203. 

bribery  of  foreign  officer,  contracts  for,  not  enforceable  by  courts,  445. 

cannot  decide  matters  settled  by  treaty,  106. 

cannot  enforce  treaty  disregarded  by  government,  94. 

cannot  inquire  whether  person  ratifying  had  authority,  128. 

China,  United  States  court  for,  406. 

China,  United  States  court  for,  what  law  to  prevail,  407. 

concurrent  jurisdiction  in  suits  against  consuls,  414. 

consul  as  witness  before  state,  423. 

construction  of  treaties  by  executive  department,  115. 

deprived  of  jurisdiction  over  captains  and  crews  of  vessels,  212. 

federal,  have   jurisdiction  where   captain   maliciously   assaults  seaman, 
448. 

federal  have  no  jurisdiction  when  title  in  third  person,  106. 

federal  question  presented,  100-114. 

federal  question  must  appear  in  record,  104. 

fugitive   extradited  for  trial  in  state  court,  not  subject  to  arrest  by 
federal  court,  336. 

international  law  alone  does  not  bind  to  deliver  fugitives,  308. 

judgments  of  in  seceding  states,  34. 

jurisdiction  of,  not  affected  by  illegal  procurement  of  prisoner,  304. 

no  power  to  adjudicate  title  under  grant  pending  before  Congress,  283. 

open  for  redress,  bar  to  national  action  for  mob  violence,  489. 

power  to  try  fugitive  on  charge  different  from  the  one  on  which  he 
was   extradited,   358. 

powerless  to  inquire  whether  treaty  was  properly  executed,  93. 

province  of,  to  construe  treaties,  94. 

resident  aliens  suing  in,  218. 

rights  under  treaties  of  cession,  how  enforced,  281,  282. 

to  present  federal  question,  treaty  right  must  be  set  up,  103. 

suits   against   consuls,   411. 

transitory  action  by  aliens,  219. 

treaty  recognizing  rights  in  Indians,  255. 

war  vessel  in  American  ports  exempt  from  jurisdiction  of,  333. 

will  not  pass  upon  power  of  Indian  tribes,  93. 
Courts-martial,  consul  as  witness  before,  432. 
Covenant,  Chinaman,  not  to  rent  property  to,  217. 

Creditors,  removal  of  fund  to  foreign  country  for  administration,  161. 
Crews,  Foreign,  jurisdiction  of  consuls  over,  212. 

Crimes,  bribery,   an  extraditable   offense  in  Mexico   and  Netherlands,  368. 
See  Chinese  Exclusion;  Extradition. 

certificate  of  criminality  before  President  can  order  extradition,  358. 
Treaties — 52 


818  INDEX. 

[References   are  to    Sections.] 

Crimes,  common-law,  316. 

condemnation  of  offenses  no  ground  to  refuse  surrender  in  extradition, 
359. 

consul  cannot  compel  vessel  to  transport  person  accused  of,  357. 

consul  violating  criminal  laws,  404. 

criminal  by  the  law  of  both  countries  in  extradition  treaties,  314. 

committed  within  jurisdiction  as  to  extradition,  309. 

employment  of  aliens  on  public  works,  201. 

false  pretenses*,  obtaining  money  by,  extraditable,  368. 

murder,  Indian  may  be  indicted  for,  committed  outside  of  reservation, 
216. 

necessity  of  laws  for  violation   of  treaty   obligations,   474-479. 

not   complete   in   one  country,   as   to   extradition,   310. 

political  offenses,  extradition  for  denied,  328. 

surrender  of  fugitive  in  extradition  on  different  charge,  358. 

treaties  of  extradition  do  not  guarantee  fugitives  an  asylum,  312. 
Criminal  Cases,  aliens  protected  by  fifth  and  sixth  amendments,  196. 
Criminal  Procedure.     See  Extradition. 

aliens  bound  by  same  as  citizens,  211. 
Criminals.     See  Extradition. 

power  of  state  to  exclude,  190. 
Cuba,  copyrights  in,  protected  by  treaty,  279. 

duties  on  products  of  suspended,  80. 

foreign   territory,    although   under   military    government    appointed    by 
President,  307. 

international  copyright,  benefit  of  extended  to,  72. 

obligations  arising  from  occupation  of,  294. 

patents  in,  protected  by  treaty,  279. 

Penal   Code   of,   forbidding  taking   of   public   funds,   317. 

treaty  of  1903,  when  went  into  effect,  88. 

treaties  in  force,  Appendix,  page  640. 
CuTberson,  Senator,  debate   as  to  Japanese   attending  public   schools,   149, 

note. 

C'urtesy,  aliens  taking  by,  227. 
Customs  Tariffs,  international  union  for,  Appendix,   page  784. 

Dam,  Kio  Grande,  effect  of  treaty  in,  297. 

Damages,  employees  leaving  property  in  case  of  violence  by  mobs  no  de- 
fense, 554. 

for  bridge,  173. 

for  injury  by  mobs,  545-554. 

gambling-house  keeper,  in  case  of  mob  violence,  554. 

government  will  not  present  a  claim  for  speculative  or  exorbitant,  563 

inability  to  suppress  riot,  no  bar  in  case  of  mob  violence,  553. 


INDEX.  819 

[References   are  to    Sections.] 
Damages,  interruption  of  business  in  cases  of  mob  violence,  554. 

militia  sent  to  scene  does  not  relieve  city  from,  in  case  of  mob  violence, 
554. 

participation  of  owner,  in  mob  violence,  548. 

reputation  of  deceased  in  mitigation  of  damages  for  injuries  by  mobs, 
547. 

right  of  nonresident  alien  to  for  death  of  relative,  215. 

suits  to  recover,  for  death  of  Italians  in  Mafia  riots,  530. 
Date,  treaty  becomes  effective  from,  86,  132. 

treaty  effective  from,  irrespective  of  ratification,  87. 

Davis,  J.  C.  Bancroft,  codification  of  rules  of  construction  of  treaties,  132. 
Dawes  Commission,  proceedings  of,  371-373. 
Deane,  Silas,  instructions  to,  as  to  entering  into  treaties,  8. 

selection  of  as  commissioner  to  conclude  treaties,  8. 
Death,  suits  to  recover  damages  for  in  Mafia  riots,  530. 
Debtor,  release  of  in  jail  in  extradition  proceedings,  360. 
Debts,  state  may  refuse  to  subject  fund  in  state  to  payment  of,  to  foreign 

corporation,  161. 
Declaration,  added  to  treaty,  65. 

amendment  for  interpretation,  67. 
Declaration  of  Independence,  adopted  by  Continental  Congress,  4. 

effected  severance  with  England,  5. 

immigration  of  aliens,  after,  256. 

Declaration  of  Intention,  citizenship  not  conferred  by,  323. 
Deed,  acknowledgment  of  deputy  consul-general,  458. 

from  Indians  conveys  no  title,  382. 
De  Facto  Government,  grants  of  land  by,  127. 
Default,  against  consuls,  waives  exemption  to  plead  privilege,  415. 
Definite  Issue  must  arise  to  present  federal  question,  113. 
Definitions.     See  Words  and  Phrases. 
Delaware,  treaty  paramount  to  statute,  242. 
Denial  of  Justice,  in  international  law,  488. 
Denmark,  admission  of  articles  free  of  duty,  169. 

attempt  against  life  of  head  of  government  not  a  political  offense,  334. 

extradition  from,  for  obtaining  property  by  false  pretenses,  368. 

international  copyright,  benefit  of  extended  to,  72. 

John  A.  Benson  surrendered  by,  in  absence  of  treaty,  304. 

treaties  in  force,  Appendix,  page  643. 
Denver,  attacks  on  Chinese  at,  511-513. 
Department  of  State.     See  Claims. 

extension  of  time  for  removing  a  prisoner  in  extradition,  357. 

regulations  for  issuance  of  requisitions  in  extradition,  369. 

transit  of  extradited  prisoner  across  the  United  States,  362. 

warrant  of  for  surrender  of  fugitive  subject  to  trial  on  different  charge, 
358. 


820  INDEX. 

[References  are  to   Sections.] 

Deportation.     See  Expulsion. 

defined,  299. 
Depositions,  authentication  of  to  be  used  in  extradition  proceedings,  350. 

by  consuls,  outside  of  state,  458. 

foreign,  how  to  be  certified  in  extradition  proceedings,  351. 

to  have  same  weight  as  if  deponent  was  present,  351. 
Deputy   Consul-General,   acknowledgments   by,   458. 
Descent.     See  Inheritance. 

aliens  acquiring  titles  by,  226. 
Deserting  Seamen,  from  ships  of  war,  treaty  with  Eussia,  117. 

surrender  of,  to  consuls,  367. 
Devise,  aliens  taking  by,  222. 

included  in  word  ' '  purchase, ' '  223. 

Dickinson,  John,  instructions  signed  by  relative  to  entering  into  treaties,  8. 
Dillon,  case  of  as  consul  at  San  Francisco,  416. 
Diplomatic  Officers,  instructions  as  to  using  language,  119. 
Directors,  aliens  may  become  in  corporations,  229. 
Discretion,  in  presentation  of  claims  against  foreign  governments,  563. 
Disease,  persons  adding  to,  prevented  from  entering  state,  206. 
Dispensary  Act  of  South  Carolina,  not  violative  of  treaty,  209. 
District  Attorney,  in  extradition,  reimbursement  for  expenses  in,  365. 
District  Courts,  concurrent  jurisdiction  with  court  of  claims,  588. 
District  of  Columbia,  court  of  claims  has  no  jurisdiction  of  claim  against, 

583. 

Diverse  Citizenship,  sole  ground  of  jurisdiction  at  commencement  of  suit,  111. 
Dominican   Republic,   suspension   of   tariff,    act    as   to,    73,   note. 

treaty  with  does  not  prevent  special  concessions,  169. 

treaties  in  force,  Appendix,  page  647. 
Dower,  aliens  taking  by,  227. 

Ecuador,  treaties  in  force,  Appendix,  page  627. 

Edmonds,  Senator,  views  of,  on  appropriation  for  attacks  on  Chinese,  523. 

Education.     See  Public  Schools;  Separate  Schools. 

Effect,  Taking,  of  Treaties,  dependent  on  conditions,  directory,  65. 

dependent  on  legislative  action,  87. 

of  treaty  on  individual  rights,  91. 

postponed  until  approval  of  Congress,  88. 

retroactive,  of  treaties,  92. 

retroactive,  of  extradition  treaties,  321. 

special  time  as  to  extradition  treaties  taking,  322. 

time  when  treaty  takes,  86. 

when  treaty  with  Cuba  takes,  88. 
Effects,  word  construed  with  "biens, "  246. 

meaning  of  in  treaty,  260. 


INDEX.  821 

[References   are  to   Sections.] 

Egypt,  American  citizens  in  service  of  entitled  to  national  protection,  565. 

treaties  in  force,  Appendix,  page  649. 
Ejectment,  alien  friend  may  maintain,  228,  240. 
Embezzlement,  corporation,  funds  of  private  not  public,  moneys,  317. 

extraditable  in  some  treaties,  368. 

funds    of    savings    bank    owned    by    a    city    in    Germany,    317. 

in  extradition  proceedings,  accounting  for  money,  351. 

Japan,  supplementary  treaty  as  to  extradition  for,  Appendix,  page  702. 

public  moneys,  extradition  for,  317. 

receipt  of  checks  for  money  due  to  as  extraditable  crime,  317. 

treaty  with  Italy,  additional  article,  Appendix,  page  695. 
Eminent  Domain,  constructing  railroad  across  lands  in  possession  of  Indians, 

•385. 

Enabling  Act  of  states  as  repealing  treaties,  170. 
England.     See  Great  Britain. 

amount  of  evidence  required  in,  on  extradition  proceedings,  350. 

foreign  judgments,  effect  of  in,  444. 

treaty-making  power,  difference  between  and  United  States,  58. 
Equity,  escheat,  when  will  not  enjoin,  223. 

judgments  set  aside  for  fraud,  292. 
Escheat,  aliens,  disability  of  to.  inherit,  221. 

aliens  taking  by  dower  or  curtesy,  227. 

as  affected  by  treaties  with  Great  Britain,  236. 

California,  constitutional  provisions  relating  to,  227. 

equity,  when  will  not  enjoin,  223. 

foreign  corporation  purchasing  stock  in  local  corporation,  224. 

law  constitutional  passed  while  proceedings  pending,  225. 

legislation  when  required,  225. 

Kentucky,  title  in,  vests  in  state  without  office  found,  251. 

Maryland,  law  in  superseded  by  treaty,  235. 

method  provided  by  statute  must  be  followed,  223. 

New  York,  treaty  barring,  258. 

Virginia,  proceedings  in,  231. 

war  of  1812  did  not  devest  title,  266. 
Estates,  administration  of  by  consuls,  202,  452. 
Estoppel,  boundary  line  between  two  states  recognized,  50. 
Ethiopia,  treaties  in  force,  Appendix,  page  649. 
Evidence,  burden  of  proof  in  Chinese  cases,  191. 

certificate  of  Chinese  government  of  mercantile  character,  191. 

certificate  of  consul  not  conclusive  in  suit  for  wages,  454. 

circumstantial,  as  to  drawing  checks  sufficient  on  extradition  for  for- 
gery, 350. 

claims  against  municipal  corporations  for  mob   violence  should  be  es- 
.     tablished  with  reasonable  certainty,  553. 

conflict  in,  in  extradition  proceedings,  356. 

consul  testifying  to  facts  within  his  personal  knowledge,  431. 


822  INDEX. 

[References   are  to    Sections.] 

Evidence,  depositions  in  extradition  proceedings,  350,  351. 

further  to  be  obtained,  not  ground  for  review  in  extradition  proceed- 
ings, 356. 

in  extradition  proceedings,  amount  of  required,  350. 

in  extradition  proceedings,  on  charge  of  embezzlement,  immaterial  what 
amount  accounted  for,  351. 

in  extradition  proceedings,  on  behalf  of  the  fugitive,  352. 

in  extradition,  property  taken  from  accused,  363. 

insanity  as  defense  in  extradition  proceedings,  352. 

judicial  knowledge  of  seal  and  signature  of  consul,  457. 

judgments  in  personam  prima  facie  valid,  436. 

loss  of  Chinese  certificate  by  theft,  191. 

passport  of  consul  as,  401. 

President  may  refuse  surrender  of  insufficient  in  extradition  proceed- 
ings, 357. 

Executive  Agreements,  President  has  power  to  make,  70. 
Executive  Department,  views  of  as  to  treaties  superseding  state  laws,  237. 
Executor,  investing  in  Confederate  bonds,  28. 
Executory  Rights,  " property"  includes,  278. 
Exemption  from  Taxation,  contract  of  state  for,  51,  52. 

Exclusion,   citizen   cannot   be    excluded    except   for    punishment   for   crime, 
187. 

See  Chinese  Exclusion. 

convicts,  lepers,  paupers,   vagabonds   and   criminals,   190. 

every  nation  may  exclude  aliens,  180. 
Expatriation,  American  citizens,  470. 

England  permits,  461. 

not  allowed  during  war,  471. 

statute  of,  1907,  471. 
Expenses,  county,  payment  of,  by,  in  extradition,  366. 

in  extradition  proceedings,  364-366. 

in  extradition,  government  and  not  officer  to  pay,  364. 

in  extradition,  offense  against  laws  of  particular  state,  364. 

in  extradition,  offense  against  laws  of  territory,  364. 

in  extradition,  reimbursement  of  district  attorney,  365. 

in  extradition,  method  for  payment  of,  366. 

in  extradition,  translation,  payment  for,  366. 

in   extradition,   intervention   of   United   States   in    conflict   with   state, 

366. 

Ex   Post  Facto   Laws,    crimes    committed   without    the   jurisdiction    of    the 
United  States,  307. 

extradition  treaties  are  not,  321. 

provision  as  to  not  applicable  to  extradition  treaties,  92. 
Expulsion.     See  Chinese  Exclusion. 

aliens  may  be  expelled,  186. 
Extradition,  abduction  by  force  from  foreign  country,  311. 

abduction  from  United  States  to  Canada,  313. 


INDEX.  823 

[References   are  to   Sections.] 

Extradition,   anarchists  not   considered  political   offenders,  335. 
appeal,  and  not  writ  of  error  allowed,  354. 
appeal  may  be  taken  by  consul,  355. 
arrest  of  fugitive  second  time  in  new  complaint,  348. 
arrest  on  foreign  vessel,  348. 
arrest  on  telegraphic  information,  348. 
arrest,  provided  for  by  Revised  Statutes,  348. 
arrest,  provisional,  349. 

attorneys  not  required  to  appear  for  foreign  government,  344. 
bail,  no  provision  for,  344. 

Benson,  John  A.,  surrendered  by  Denmark,  304. 
bonds  and  coupons,  315. 
books  of  account,  false  entries  in,  318,  320. 

bribery,  extradition  for  crime  of,  committed  prior  to  treaty,  321. 
bribery  extraditable  under  treaties  with  Mexico  and  Netherlands,  368. 
bribery,  need  of  more  effective  treaties  for,  321. 
British  subject  committing  murder  on  ship  at  Cuba  and  landing  in  New 

York,  310. 

Canada,  person  dying  from  poison  administered  in  United  States,  310. 
certificate  of  criminality  by  the  courts  required  before  President  can 

order,  358. 

Chile,  delivery  from  not  asked  in  absence  of  treaty,  303. 
citizens,  citizenship  a  matter  of  defense,  323. 
citizens,  contention  of  Mr.  Blaine,  324. 
citizens,  declaration  of  intention  does  not  make,  323. 
citizens,  foreigner  acquiring  real  estate  becomes,  under   Mexican  law, 

326. 

citizens  of  another  country  to  be  surrendered,  327. 
citizens,  not  to  be  delivered  up,  323. 
citizens,  refusal  to  surrender  to  Mexico,  325. 
citizens,    Switzerland    surrendering,    325. 
citizens,  United  States  averse  to  excluding  from  operation  of  treaty, 

325. 

citizens,   when   not    delivered   under   Mexican    treaty,    308. 
citizens,  yielding  to  usual  mode  of  trial,  323. 
civil  process,  release  of  debtor  in  jail  under,  360. 
comity,  delivery  as  a  matter  of,  300. 
comity,  not  now,  asked  as  a  matter  of,  301. 
commissioner  may  charge  usual  fees,  366. 
common-law  crimes,  316. 
complaints,  consul  verifying,  345. 
complaints,  on  information  and  belief,  345. 
complaints,  precision  of  indictment  not  required,  346. 
complaint,  sufficiency  of,  345. 

complaint  sufficient,  showing  commission  of  treaty  offense,  347. 
complaints,  who  may  verify,  346. 


824  INDEX. 

[References  are  to   Sections.] 

Extradition,  condonation  of  offenses,  359. 

conflicting  evidence  before  commissioner,  356. 

Congo,  surrendering  fugitive  voluntarily,  304. 

conspiracy  to  commit  a  crime  abroad,  310. 

constitutional  guaranties  not  applicable  to  crimes  committed  in  foreign 

country,  307. 

continuances,  how  granted,  344. 
Costa  Eica,  surrendering  fugitive  voluntarily,  304. 
crime  committed  on  board  of  ship  of  war  on  high  seas,  309. 
crime. committed  within  jurisdiction,  309. 
crime  not  complete  in  one  country,  310. 

criminal  by  law  of  both  countries,  offense  to  be  essentially  same,  314. 
counsel,  employment  of,  may  be  authorized  by  President,  357. 
counsel  fees  as  expenses  of,  364. 
consuls    have    no    power    to    require    masters    of    American    vessels    to 

carry  fugitive,  357. 
consul  may  appeal,  355. 
Cuba,  held  to  be  foreign  territory,  307. 
Cuba,  public  employee  taking  public  funds  in,  317. 
date  of  conclusion  of  treaty,  time  at  which  it  becomes  effective,  322. 
date,  treaty  declaring  it  shall  not  apply  to   offenses   committed  prior 

to,   322. 

definition  of,  299. 

delivery  independent  of  treaty,  304. 
delivery  within  two  months  after  commitment,  361. 
Denmark  surrendering  John  A.  Benson,  304. 
dependent  on  treaty,  298. 
deportation,  definition  of,  299. 

depositions,  authentication  of,  350.  % 

depositions,  foreign,  351. 
deserting  seamen,  367. 
different  offense,  trial  for,  336-341. 
different  offense,  fugitive  voluntarily  returning  cannot  object  to  trial 

on,  336. 

discretion,  in  cases  not  covered  by  treaty,  305. 
district  attorney,  expenses  of,  365. 
election  on  charges,  338. 

England,  forgery  as  recognized  by  courts  of,  318. 
enumeration  of  certain  offenses,  excludes  others,  301. 
embezzlement  of  funds  by  cashier  in  German  savings  bank,  317. 
embezzling   public    moneys,   317. 

embezzlement,  accounting  for  less  than  amount  charged,  351. 
embezzlement  in  some  treaties,  extraditable  offense,  368. 
escape,  by  means  of  foreign  vessel,  302. 
escape  of  prisoner  from  jail  at  Constantinople,  310. 
evidence,  .circumstantial,    showing    offense,    350. 


INDEX.  825 

[References  are  to   Sections.] 

Extradition,  evidence,  conclusiveness  not  required,  352. 
evidence,  law  of  what  place  to  govern,  351. 
evidence,  in  behalf  of  fugitive,  352. 
evidence   required,   certificate   of  ambassador,  350. 
evidence  required  to  warrant,  350. 
exemption   from   local    jurisdiction,    333. 
expenses  of,  364-366. 

expenses  of,  party  making  requisition  to  pay,  364. 
expenses  of,  requisition  demanded  by  state  authorities,  364. 
expenses  of  when  offense  is  against  laws  of  territory,  364. 
expenses,  method  of  payment  of,  366. 
expenses,  services  of  translator,  366. 
expenses,  United  States  intervening,  367. 
extension  by  doubtful  construction,   181. 
ex  post  facto  law,  treaty  of,  is  not,  321. 
false  affidavits  to  secure  return  of  fugitive,  312. 
favor,   asked  as,   303. 

federal  question  raised  by  violation  of  treaty,  109. 
federal  court  cannot  arrest  fugitive  indicted  in  state  court,  336. 
forcibly  bringing  fugitives  into  United  States,  310. 
foreign  government,  no  right  to  claim  without  a  treaty  of,  308. 
foreign  government  may  complain  of  forcible  arrest,  313. 
foreign    territory,    constitutional    guaranties    do    not    apply    to    crimes 

committed  in,  307. 

foreign  territory,  Cuba  held  to  be,  307. 
foreign  vessel,  escape  by  means  of,  302. 
forgery,  definition  of,  316. 

forgery,  as  defined  by  courts  of  England,  318. 
forgery,  in  treaty  with  Austria-Hungary,  319. 
forgery,  fugitive  arrested  for  larceny  cannot  be  tried  for,  336. 
forgery  in  the  third  degree,  320. 
France,  laws  of  place  of  refuge,  319. 
fraudulent  use  of  the  mails,  persons  charged  with,  358. 
fugitives  not  to  be  delivered  up  without  treaty,  298. 
fugitive  may  be  tried  for  any  charge  pending  in  United  States  against 

him,  358. 

government,  real  party  in  interest,  355. 

governor,  statute  authorizing  delivery  of  fugitive,  unconstitutional,  308. 
Grogan,  abduction  of,  313. 

habeas  corpus  cannot  perform  office  of  writ  of  error,  353. 
habeas  corpus  proceedings,  353. 
Harden,  extradition  of,  300. 
Holmes  case,  37. 

homicide  under  military  law,  319. 
homicide,  in  treaty  with  Salvador  defined,  319. 
illegal  return  of  fugitive  does  not  affect  jurisdiction  of  court,  304. 


826  INDEX. 

[References  are  to   Sections.] 

Extradition,  immigration  acts,  delivery  under,  306. 

immigration  acts  do  not  take  place  of  treaties  of,  306. 

indictment   and  trial   valid,   312. 

indictment,   ordinary   technicalities  not   applicable,   347. 

indictment  quashed,  347. 

insanity,   evidence   of,  to   rebut   presumption  of   guilt,  352. 

international  law,  courts  not  bound  by  to  deliver  fugitives,  308. 

irregularities  in,  311. 

irregular,    foreign    government    may    complain,    313. 

Italian  code  forbidding  extradition  of  Italian  subjects,  324. 

Japan  surrendering  Calvin  Pratt,  304. 

jewels  of  Princess  of  Orange  returned,  363. 

jurisdiction  of  court  not  affected  by  illegal  return  of  prisoner,  304. 

"jurisdiction,"  convertible  with  term  "country,"  309. 

jurisdiction  of  supreme  court,  to  review  provisions  of  treaty  for,  354. 

kidnaping  fugitive  in  foreign  country,  311. 

kidnaping,  voluntary  return  by  Great  Britain,  313. 

larceny,  fugitive  extradited  for,  cannot  be  tried  for  forgery,  336. 

law  of  the  place  of  arrest,  318. 

law  of  the  place  of  refuge,  319. 

lesser  offense,  trial  for,  339. 

Lincoln,  demand  for  surrender  of  assassin  of,  334. 

magistrate,   who   may  act   as,   344. 

malice  on  part  of  prosecuting  witness,  348. 

mandate,  343. 

man-of-war,  escape  by  means  of,  302. 

marshal,  counsel  may  be  employed  by  President  in  behalf  of,  357. 

marshal  may  charge  usual  fees,  366. 

Mexican   government  not  allowing,  where  no   treaty  exists,   303. 

Mexican  law  as  to  surrender  of  fugitive,  326. 

Mexico,  definition  of  forgery  in,  316. 

Mexico,  delivering  fugitive  without  treaty,  300. 

Mexico,  regulations  of  Department  of  State  as  to,  Appendix,  page  589. 

most  favored  nation  clause  does  not  extend  to,  131. 

municipality,  money  due   to,   accounted  for  only  in  part,  317. 

murder,  extradition  of  fugitive  from  Spain  when  not   demanded,   303: 

murder,  in  treaty  with  Salvador,  defined,  319. 

murder  on  high  seas,  law  of  place,  318. 

nation  has  no  right  to  invade  territorial  waters  of  another  state,  313. 

Neilson,  extradition  of,  300. 

not   allowable  for   collection   of   debts,   Appendix,   page   607. 

offense  committed  pending  trial,   341. 

offense  criminal  by  law  of  both  countries,  314. 

officer  falsely  certifying  to  invoices,  317. 

officer  on  way,  no  excuse  for  delay,  361. 

omission  of  words,  "or  be  punished,"  178. 


INDEX.  827 

[Referer^-r  are  to   Sections.] 
Extradition,  Pilcomayo  mutineers,  332. 

plea  to  prevent,  only  legal  one  can  be  entertained,  359. 

pleading,  trial  for  different  offense,  337. 

pleading  of  irregular  bringing  to  United  States,  311. 

poison  administered  in  United  States  to  person  dying  in  Canada,  310. 

political  offenses,  328. 

political  offenses,  during  Civil  War,  330. 

political  offenses,  attempt  on  life  of  President,  334. 

political  offenses,  anarchists,  335. 

political  offenses,  whom  to  decide,  329-331. 

Porto  Eico,  request  of  governor  of,  303. 

Pratt,  Calvin,  surrendered  by  Japan,  304. 

preliminary  examination  is  not  a  final  trial,  344. 

President,  attempt  against  life  of,  334. 

prior  charge,  arrest  on,  340. 

provisional  arrest,  Appendix,  page  581. 

Prussia,  embezzlement  of  public  moneys  under  treaty  with,  317. 

public  moneys,  what  are,  317. 

reciprocity,  Mexican  government  requiring,  303. 

reciprocity,  no  power  in  the  United  States,  301. 

reciprocity,  law  of  Mexico  as  to,  321. 

refusal  to  surrender  fugitive,  359. 

regulations  of  state  department,  369;  Appendix,  page  579. 

release  of  debtor  in  jail  under  civil  process,  360. 

rendition  of  services  to  the  government  no  ground  for  refusing,  359. 

requisites  of  applications  for  extradition,  Appendix,  pages  585-589. 

requisition,  application  for,  342. 

restoration  of  property,  363. 

retroactive  effect  of  treaties  of,  92,  321. 

right  of  foreign  nations  to  demand  surrender  without  treaty  not  recog- 
nized, 308. 

Salvador,  fugitives  from,  arrested  on  steamer,  310. 

San  Ignacio,  raid  at,  331. 

setting  aside  indictment    after,  305. 

ship  of  war  on  high  seas,  crime  committed  on,  309. 

South  African  Eepublic,  .extradition  from,  when  allowed,  310. 

Spain,  delivering  fugitive  without  treaty,  300. 

state  cannot  negotiate  for,  35. 

state   court,  judgment   of  on  plea  of  irregular  extradition  reviewable, 
311. 

statute  authorizing  governor  to  deliver,  unconstitutional,  308. 

statute  imposing  on  county  expenses  of  returning  fugitive,  366. 

surrender  not  in  pursuance  of  treaty,  305. 

surrender  of  fugitive  an  executive  function,  357. 

surrender,  President  may  refuse  if  evidence  insufficient,  357. 

surrender  on   different  charge,  358. 


828  INDEX. 

[References  are  to   Sections.] 

Extradition,  territory  occupied  by  United  States,  307. 

territory,  offenses  against  laws  of,  expenses,  how  paid,  364. 

time  of  taking  effect  of  treaties  of,  321. 

time  of  taking  effect,  special  stipulation  as  to,  322. 

time  for  taking  a  prisoner  away  cannot  be  enlarged,  357. 

tolls,  money  collected  as,  317. 

trial  valid  although  surrender  irregular,  312. 

transit  across  United  States,  362. 

translator,  services  of  as  expenses,  366. 

transportation,  definition  of,  299. 

trial  for  another  offense,  rule  does  not  apply  to  voluntary  surrender, 
305. 

treaties  now  govern,  38. 

treaty-making  power  includes,  298. 

treaty,  measure  of  right,  308. 

Tweed,  delivery  of,  300. 

two  charges  in  two  different  states,  358. 

United  States  not  obligated  to  deliver  fugitives  without   treaty,   298. 

validity  of  treaty  cannot  be  questioned  on,  96. 

variances,  338. 

verification  of  complaints,  346. 

violence  used  to  take  prisoner  from  one  state  to  another,   311. 

voluntary  surrender  of  fugitive,  304. 

voluntary  surrender,  rule  as  to  trial  for  another  offense  not  applicable, 
305. 

voluntary  surrender  setting  aside  indictment,  305. 

war  vessel  of  foreign  nation  exempt  from  jurisdiction  of  courts,  333. 

writ  of  error  and  not  appeal  allowed,  354. 
Extradition  Treaties  in  Force,  Austria-Hungary,  Appendix,  page  613. 

Bavaria,  Appendix,  page  616. 

Belgium,  Appendix,  pages  620,  621,  622. 

Bolivia,  Appendix,  page  623. 

Brazil,  Appendix,  page  626. 

Chile,  Appendix,  page  629. 

Colombia,  Appendix,  page  637. 

Cuba,  Appendix,  page  642. 

Denmark,  Appendix,  page  646. 

Dominican  Kepublic,  Appendix,  page  648. 

France,  Appendix,  pages    655,  656. 

Greece,  Appendix,  page  685. 

Great  Britain,  Appendix,  page  676. 

Great  Britain,  supplementary,  Appendix,  pages    680,  682. 

Hayti,  Appendix,  page  687. 

Hanover,  Appendix,  page  688. 

Japan,  Appendix,  page  700. 

Japan,  supplementary,  Appendix,  page  702. 


INDEX.  829 

I 
[References  are  to   Sections.] 

•xtradition   Treaties  in  Force,  Italy,  Appendix,  pages  694,  695,  697. 

Luxemburg,  Appendix,  page  704. 

Mexico,  Appendix,  pages  710,  717,  718. 

Netherlands,  Appendix,  pages  724,  725. 

Nicaragua,  Appendix,  page  726. 

Norway,  Appendix,  page  727. 

Orange  Free  State,  Appendix,  page  729. 

Ottoman  Empire,  Appendix,  page  730. 

Panama,  Appendix,  page  731. 

Peru,  Appendix,  pages  736,  737. 

Prussia,  Appendix,  page  740. 

Prussia,  Appendix,  page  744. 

Servia,  Appendix,  page  750. 

Salvador,  Appendix,  page  746. 

Spain,  Appendix,  pages  755,  756. 

Sweden,  Appendix,  pages  761,  762. 

Switzerland,  Appendix,  page  764. 

Wiirttemberg,  Appendix,  page  773. 
Extraterritoriality  in  non-Christian  countries,  405. 

False  Entries,  in  books  of  account,  not  forgery  under  English  law,  318. 
False  Imprisonment,  constable  liable  for  where  consul  has  exclusive  juris- 
diction, 448. 

False  Pretenses,  obtaining  money  by,  law  in  United  States  court  for  China, 
410. 

obtaining  property  by  an  extraditable  offense,  368. 
,    Federal  Question  arising  under  treaties,  100. 

award  under  claims  commission,  110. 

bankruptcy,  outstanding  title  in,  107. 

both  parties  claiming  under  grant,  102. 

claim  under  treaty  not  a  frivolous  one,   105. 

construction  of  state  statutes,  108. 

definite  issue  as  to  claim  of  rights,  113. 

diverse  citizenship  sole  ground  of  jurisdiction,  111. 

does  not  arise  from  fraudulent  grant,  102,  103. 

extradition,  violation  of  treaty  of  raises,  109. 

fraudulent  claim,  101. 

manner  in  which  cause  of  action  arises  to  be  stated,  114. 

protection  of  inhabitants,  109. 

rights  arising  before  treaty,  100. 

title  in  third  person  under  treaty,  106. 

treaty   introduced   as    part   of   history   of   case,    112. 

treaty  right  must  be  set  up,  103. 

when  must  be  set  up,  104. 


830  INDEX. 

[References  are  to   Sections.] 

Fee,  section  16  occupied  by  Indians,  379. 

Fees,  commissioner  and  marshal  in  extradition  proceedings,  367. 

counsel,  in   extradition  proceedings,   364. 

district  attorney  in  extradition  proceedings,  365. 

Ferrara,  Pietro,  claim  of  against  United  States  based  on  Italian  treaty,  575, 
Fifth  Amendment  protects  aliens,  196. 
Fisheries,  modus  Vivendi  as  to  northeastern,  70. 

treaty  with   Great  Britain   relating  to,   Appendix,   page   672. 
Flint,  Senator,  debate  as  to  Japanese  attending  public  schools^   149,  note. 
Florida,  acquisition  of  under  treaty  power,  268. 

grant  of  land  in,  by  Spain  binding,  273. 

inhabitants  of,  before  cession  becoming  citizens,  295. 

treaty  with  Spain,  as  to  lands  in,  65. 

treaty  for  cession  of,  Appendix,  page  754. 

Foraker,  Senator,  debate  as  to  Japanese  attending  public  schools,  149,  note. 
Foreign  Corporations,  not  subjects,  296. 

payment  of  indebtedness  to,  may  be   refused   by  attachment   of  fund 
in  state,  161. 

purchasing  stock  of  local  corporation,  224. 
Foreigners.     See  Aliens. 
Foreign  Governments.     See  Claims. 

claims  against,  555-590. 

money  received  from  in  trust  for  American  citizens,  578. 
Foreign  Heirs.     See  Aliens. 

may   inherit,    250. 

Foreign  Judgments,  effect  of  in  United  States,  435-444. 
Foreign  Ship,  escape  by  means  of  no  ground  for  refusing  extradition,  302. 

jurisdiction  of  crime  on,  129,  130. 
Forgery,  bonds  and  coupons  as  samples,  315. 

circumstantial   evidence   as   to    drawing   checks,   sufficient    evidence   of 
on  extradition,  351. 

crime  of  uttering  forged  papers  included  in,  319. 

false  entries  in  books  of  account,  not  included  in  English,  definition  of, 
318. 

fugitive,  extradited  for  larceny,  cannot  be  tried  for,  336. 

in  the  third  degree,  not  covered  by  Mexican  treaty,  320. 

Mexico,  under  extradition  treaty  with,  316. 

signature   obtained  by  fraud,   whether   constitutes,   under   treaty   with 

Japan,  320,  note. 
Fourteenth  Amendment,  applies  to  aliens,  195. 

Chinese   exclusion  laws  not   applicable   to   person   born  in   the   United 

States,  188. 
France,  commercial  agreement  with,   73,  note. 

Continental  Congress  proposing  treaty  to,  8. 

destruction  of  privateers  of,  by  mob  violence,  497. 

international  copyright,  benefit  of  extended  to,  72. 


INDEX.  831 

[References   are  to   Sections.] 
France,  judgments  rendered  in,  effect  of,  in  United  States,  437. 

persons   adding   to    prevalence   of    disease   as   to    treaty   with,    206. 

Tennessee,  laws  of  subject  to   treaty  with,  264. 

treaty  providing  law  of  place  to  be  applied  in  extradition  proceedings, 
319. 

treaties  in  force,  Appendix,  pages  650-659. 

treaty  with,   superseding  constitution   of   Nebraska,   236. 

treaty  with  as  to  powers  of  consuls  relative  to  shipping  and  seamen, 
453. 

treaties  in  force,  Appendix,  pages  650-659. 

Franklin,  Dr.  Benjamin,   instructions  signed  by,  relative  to   entering  into 
treaties,  8. 

selection  of  as  commissioner  to  conclude  treaties,  8. 
Fraud,  consul  corruptly  influencing  officers  of  foreign  government,  445. 

in  claims,  will  justify  government  in  refusing  to  present,  566. 

judgments  set  aside  for,  292. 

Fraudulent  Claim,  not  case  arising  under  treaty,  101. 
French  Privateer,  destruction  of,  by  mob  violence,  497. 
Frivolous  Question,  claim  under  treaty  is  not,  105. 

Fulton,  Senator,  debate  as  to  Japanese  attending  public  schools,  149,  note. 
Fur  Seals,  modus  vivendi,  as  to,  70. 

treaty  with  Great  Britain  relating  to,  Appendix,  page  677. 

Gambling,  damages  to  house  by  mob  violence;  554. 

Geneva,  treaty  of,  for  amelioration  of  wounded  in  time  of  war,  Appendix, 

page  775. 

German  Empire,  treaties  in  force,  Appendix,  page  659. 
Germany,   international   copjTight,   benefit   of   extended   to,   72. 

Samoan  Islands,  operations  in,  272. 

suspension  of  tariff  act  as  to,  73,  note. 

treaty  with  does  not  require  state  courts  to  subject  fund  to  payment 
of  debts  by  attachment  to  foreign  corporation,  161. 

treaty  with,  does  not  take  away  jurisdiction  of  admiralty  courts,  455. 
Gilbert  Islands,  Great  Britain,  operations  in,  272. 
Good  Faith,  interpretation  to  be  in,  116. 
Goods,  not  including  "lands"  in  treaty,  249. 
Government,  responsibility  of,  for  mob  violence,  472-554. 
Government,  Claims  Against.     See  Claims. 
Governor,   not   authorized   to    deliver   fugitives,   308. 
Grant,  abandoned,  deemed  to  be,  when,  284. 

allowance  of  in  part,  by  Congress,  293. 

both  parties  claiming  under,  no  federal  question  presented,  102. 

by  a  de  facto  government,  127. 


832  INDEX. 

[References  are  to   Sections.] 

Grant,  collateral  attack  on  patent  not  permitted,  582. 

confirmation  of,  operation  in  favor  of  confirmee  only,  292. 

measuring  of  land,  287. 

Mexican,  in  Arizona,  contesting,  282. 

Mexican  titles  in  California  after  treaty,  290-292. 

obtained  by  fraud,  no  federal  question  presented,  101. 

perfected  claims  not  excluded  from  land  commission,   286. 

pending  before  Congress,  power  of  courts  to  adjudicate,  283. 

simulation  of  presents  no  federal  question,  103. 

Spain,  power  of,  to  make  on  any  consideration,  278. 

states  making,  in  case  of  disputed  boundaries,  275. 

survey  when  necessary  to  identify,  285. 

title  under  act  of  Congress  inferior  to,  when,  277. 

treaties  protecting,  276. 

unassailable  until  survey  made,  282. 
Great  Britain,  breaches  of  treaty  of  peace  with,  14. 

confiscation  acts  annulled  by  treaty  with,  261. 

Gilbert  Islands,  operations  in,  272. 

international  copyright,  benefit  of  extended  to,  72. 

modus  vivendi  as  to  fur  seals,  70. 

permits  expatriation,  461,  465. 

policy  of,  in  presentation  of  claims  against  governments,  564. 

provisional  detention  of  fugitives  from  justice  in,  Appendix,  page  584. 

relinquishment  of  claim  to  property,  378. 

suspension  of  tariff  acts  as  to,  73,  note. 

treaty  as  to  fugitive  criminals,  178. 

treaty  with  nullifies  law  sequestering  property,  166. 

treaty  of  peace  with,  12. 

treaties  with  superseding  state  laws,  236. 

treaty  of  1794  overcoming  laws  of  Kentucky,  251. 

treaties  in  force,  Appendix,  pages  661-684. 
Greece,  treaty  with,  not  amended  by  declaration  of  interpretation,  67. 

treaties  in  force,  Appendix,  page  683. 
Guadalupe  Hidalgo,  Texas,  statute  of,  as  in  conflict  with,  265. 

treaty  of,  protecting  rights  of  property,  274. 
Guardian,  investing  in  Confederate  bonds,  27. 
Guatemala,  suspension  of  tariff  act  as  to,  73,  note. 

treaties   in   force,   Appendix,   page   684. 
Guenther,  American  consul  subpoenaed  as  witness,  427. 

Habeas  Corpus.     See  Extradition. 

appeal  and  not  writ  of  error  proper  procedure,  354. 
cannot  perform  office  of  writ  of  error,  331,  353,  note, 
cannot  end  extradition  proceedings  regularly  instituted,  356. 
Chinese   exclusion  cases,   192,   193. 


INDEX.  833 

[References  are  to   Sections.] 

Habeas  Corpus,  citizen  of  foreign  state,  in  custody  for  act  done  under  for- 
eign authority,  510. 

conflict  of  evidence  in  extradition  proceedings,  356. 

consul  may  appeal  in  extradition  proceedings,  355. 

crimes  committed  without  the  jurisdiction  of  the  United  States,  307. 

discharge,  where  forgery  charged  is  false  entries  in  books  of  account, 
318. 

extradition,  conflicting  evidence  not  reviewed  on  appeal,  356. 

extradition,  consul  may  appeal,  355. 

federal  court  will  not  interfere  with  state  courts,  until  every  remedy 
exhausted,  353. 

further  evidence  not  ground  for  review  in  extradition  proceedings,  356. 

release  of  debtor  in  jail  under  civil  process,  360. 

Hague  Convention  settlements  of  international  disputes,  Appendix,  page  785. 
Hamburg,  treaties  in  force,  Appendix,  page  689. 
Hanover,  treaties  in  force,  Appendix,  page  688. 
Hanseatic  Republics,  treaties  in  force,  Appendix,  page  689. 
Harrison,  Benjamin,  instructions  signed  by  relative  to  entering  into  treaties, 
8. 

recommendations  of,  for  punishment  of  violation  of  treaty  rights,  474, 

475. 
Hawaiian  Islands,  acquisition  of,  wishes  of  population  not  consulted,  270. 

Japan  objecting  to  acquisition  of,  270. 

reciprocal  concessions  do  not  infringe  other  treaties,  169. 

treaties  with,  terminated,  Appendix,  page  690. 

Hay,  John,  instructions  to  United  States  consul  at  San  Juan  del  Monte,  430. 
Hayti,  treaties  in  force,  Appendix,  page  686. 
Head-money  Cases,  immigration  acts,  175. 
Heirs,  claim  of,  precluded  by  lapse  of  time,  252. 
See  Aliens;  Inheritance. 

foreign   citizen,   heirs   of,   inheriting,    250. 

Hemp,  license  for  manufacture  of,  protection  by  treaty,  279. 
Hennessy,  Chief  of  Police,  killed  in  Mafia  riots  at  New  Orleans,  526. 
Hesse,  treaty  of   naturalization  with,   464. 

treaties   in   force,   Appendix,  page  692. 
History  of  the  Case,  treaty  introduced  as  part  of,  does  not  involve  validity 

of  treaty,  112. 

Holmes  Case,   on  extradition,  history  of,   37. 
Homestead,  grant  as  affected  by  entry  of,  276. 
Homicide,  under  treaty  with  Salvador,  319. 
Honduras,  suspension  of  tariff  act  as  to,  73,  note. 

House  of  Representatives,  appropriation  of  money  pursuant  to  treaty,  81-83. 
Hungary,  trademarks,  treaty  respecting,  280. 

Hunting,  right  of,  in  Indians  revoked  by  act  admitting  state,  170. 
Treaties — 53 


834  INDEX. 

[References   are  to    Sections.] 

Illinois,  resident  of  Sweden  inheriting  in,  246. 

treaty  paramount  to  statute  in,  243-245. 

Immigration,  power  of  Congress  to  pass  acts  relating  to,  175. 
Immigration  Acts,  criminals,  return  of,  under,  306. 

fugitives  from  justice,  surrender  of,  under,  306. 
Implication,  repeal  of  treaty  by  subsequent  one,  99. 

repeal  of  treaties  by,  not  favored,  178. 

statutes,  rule  as  to  repeal  of,  184. 
Imports,  suspension  of  act  prohibiting,  77. 
Impossibility  of  Performance  as  terminating  treaty,  95. 
Indemnity.     See  Mob  Violence. 

for  certain  Chinese  losses,  524. 

killing  Italians  in  Colorado,  531. 

tendered  for  Italians  killed  in  Mafia  riots,  528. 
Indians,  abandonment  of    possession  by,  382. 

act  creating  Oklahoma  superior  to  treaty  exempting  lands,  171. 

acts  of  Congress  bind,  385. 

adoption  of  white  person  into  tribe,  385. 

appeal  to  supreme  court,  375. 

California  lands  in,  became  a  part  of  the  public  domain,  383. 

Cherokee,   obtaining  injunction   against   Georgia,  384. 

citizens,   becoming,   386. 

constitutionality  of  legislation,  376. 

contract  with,  in  violation  of  treaty,  void,  389. 

courts  will  not  pass  upon  power  to  make  treaties,  93. 

courts  bound  by  treaty  recognizing  rights  in,  255. 

cutting  timber  by,  380. 

Dawes  Commission,  371-373. 

deed  from,  passes  no  title,  382. 

effect  of  treaties  with,  388. 

eminent  domain  for  railroad  across  lands  occupied  by,  385. 

fee  to  land,  cannot  pass,  382. 

federal  courts  having  jurisdiction  of  suits  brought  by  government  for, 
386. 

federal  question  presented  by  taxation  of  lands,  390. 

general  acts  of  Congress  not  applicable  to,  385. 

government  may  dispose  of  land  without  consent  of,  379. 

grant  of  sixteenth  and  thirty-sixth  sections  in  occupancy  of,  383. 

jurisdiction  of  supreme  court  of  the  United  States,  388. 

lands  of,  taxable  when,  170. 

laws  of  state  have  no  effect  in  their  tribal  relations,  385. 

legislation  may  control,  391. 

liberal  construction  of  treaties  with,  390. 


INDEX.  835 

[References   are  to    Sections.] 
Indians,  marriage  of  white  persons  to,  385. 

Montana  enabling  act  gave  jurisdiction  over  crimes  of,  171. 

murder,  according  to  treaty  between  United  States  and  Cherokees,  385. 

murder  outside  of  reservation,  indictment  for,  216. 

policy  of  the  United  States  as   to,  387. 

prevention  of  intrusion  on  Indian  lands,  216. 

pueblo  title  of,  not  defeated  by  change  of  sovereignty,  277. 

purchaser  from,  acquires  only  a  right  of  possession,  382. 

recognition  of  executive  department  followed  by  the  courts,  389. 

relinquishment  by  Great  Britain,  378. 

right  to   hunt  revoked  by  act  admitting  state,   170. 

right  of  occupation,  379. 

state  cannot  regulate  social  relations  of  tribe,  386. 

state   has   no   power   to   withdraw   from   act   of   Congress   as   to   liquor 
traffic,  388. 

state  laws  providing  for  licenses  to  enter  territory  void,  388. 

taxation  of,  387. 

technical  meaning  of  treaties  with,  not  to  be  considered,  392. 

title  of  the  United  States  devested  by  patent,  381. 

treaties  prior  to  legislation,  377. 

treaty  power,  may  dispose  of  government  title,  383. 

treaties  with,  modifying  acts  of  Congress,  171. 

treaties  with,  370-393. 

tribes  of,  not  a  foreign  state,  384. 

tribe  party  to  suit,  374. 
Indictment  in  Chinese  exclusion  cases,  191. 

in  extradition  proceedings,  ordinary  technicalities  not  applicable,  347. 

precision  of,  not  required  in  complaint  in  extradition,  346. 

valid  although  original  arrest  illegally  made,  312. 

variance  between  charge  for  which  extradition  had  and  one  charged 

in,  338. 

Individual  Rights,  treaty  affecting,  when  takes  effect,  91. 
Industrial  Property,   treaty  for  protection   of,   Appendix,   page   777. 
Infanticide,  treaty  with  Salvador  defining,  319. 

Information  and  Belief,  complaint  based  on  in  extradition  proceedings,  345. 
Inheritance,  aliens  taking  by  devise,  223. 

attainder  for  treason,  262. 

curtesy,  taking  by,  227. 

Delaware,  treaty  superseding  statute,  242. 

descent,  alien  acquiring  title  by,  226. 

disability  of  aliens,  221. 

dower,  taking  by,  227. 

foreign  corporation  purchasing  stock  of  local  corporation,  224. 

goods  not  including  lands,  249. 

heirs   of   foreign    citizen    inheriting,    250. 

Illinois  treaty  superseding  statutes,  243-245. 


836  INDEX. 

[References  are  to   Sections.] 

Inheritance,  improving  property,  259. 

lapse  of  time  precluding  claim  of  heir,  252. 

limitation  on  time  to  sell  in  New  York,  257. 

Kentucky,  aliens  do  not   take   by  descent   in,   250. 

Maryland,  law  of,  overcome  by  treaty,  253. 

Massachusetts,  laws  of,  overcome  by  treaty,  254. 

New  York,  laws   of,   superseded  by  treaty,   256. 

North  Carolina,  laws  of,  overcome  by  treaty,  260. 

of  property  primarily  a  state  right,  241. 

Pennsylvania,  laws  of,  overcome  by  treaty,  261. 

rents,  alien  heir  enjoying,  259. 

resident   of   Sweden   inheriting  in  Illinois,   246. 

resident  heirs,  aliens  having  same  rights  as,  259. 

right  of  alien  to  inherit  affected  by  treaty,  220. 

sale  of  interest  of  heir,  231,  232. 

South  Carolina,  laws  as  to  alienage,   overcome  by  treaty,  263. 

Tennessee,  laws  of,  subject  to  treaty,  264. 

title  of  alien  can  be  devested  only  by  office  found,  221. 

title  in  aliens,  when  treaty  made,  222. 

title,  one  vested  not  devested,  234. 

title,  existence  of,  at  time  of  treaty,  258. 

valid  titles  only  protected  by  treaties,  255. 

vested  remainders  included  in  lands,  254. 

Virginia,  laws  of,  subject  to  treaty,  266. 

Virginia,  statute  of,  relating  to,  228. 

Waldeck,  citizens  of,  affected  by  treaty  with  Prussia,  250. 

Wiirttemberg,  treaty  with,  allowing  time  to  sell,  257. 
Injunction,  escheat,  when  not  enjoined,  223. 
In  Rem,  judgments  valid  universally,  435. 

power  of  consul  to  commence  suit  in,  450. 

Insanity,  fugitive  may  introduce  as  defense  in  extradition  proceedings,  352. 
Intention  of  treaty  to  be  carried  out,  117. 
Interest  allowed  to  New  York  for  money  borrowed  from  canal  fund,  580. 

bonds  of  North  Carolina,  579. 

in  court  of  claims,  580. 

not  allowable  on  internal  revenue  taxes  paid  without  protest,  580. 

part  of  national  indemnification,  132. 

payment  of,  on  claims  against  government,  579. 
Internal  Police,  states  have  right  to  regulate,  170. 

Internal  Revenue,  interest  paid  on  taxes  without  protest  not  allowable,  580. 
International  Arbitration,  Hague  convention,  Appendix,  page  785. 
International  Copyright,  benefit  of,  extended  to  certain  nations,  72. 
Jnternational  Law,  cession  of  territory,  271. 

claims   arising  on  contracts,  582. 

.commission  of  acts  of  hostility  by  foreign  insurgents  in  waters  of  an- 
other state,  332. 


INDEX.  8137 

[References   are  to    Sections.] 

International  Law,  courts  not  bound  by,  alone,  to  remand  prisoners  for  trial, 
308. 

forcible  trespasses  and  evictions,  581. 

founded  on  mutuality,  438. 

government  not  responsible  for  acts  of  subjects,  473. 

inviolability  of  territory  of  independent  states,  509. 

justice  denied,  how  considered  by,  488. 

part  of  the  law  of  the  United  States,  434. 

surrender  of  citizens,  324. 

war  vessel  in  American  port  exempt  from  local  jurisdiction,  333. 
Interoceanic  Canal,  protocol  for  construction  of,  Appendix,  page  639. 
Intervention  by  consul,  451. 

Invoices,  false  certification  of,  as  extraditable  offense,  317. 
Iowa,  " goods"  not  including  "lands,"  249. 

laws  of  state,  treaty  conflicting  with,  will  control,  250. 

treaty  superseding  statute  in,  248. 
Italians,  lynching  of,  534,  540. 

killing  of,  by  mob  violence  in  Colorado  in   1895,  531. 

Mafia  riots  at  New  Orleans,  526-530. 

voting  as  a  bar  to  recovery  for  mob  violence,  537. 
Italy,  commercial  agreement  with,  73,  note. 

contention  of,  in  case  of  lynching  of  Italian  subjects  at  Hahnville,  536. 

demands  of,  in  Mafia  riots,  527. 

extradition  for  political  offenses,  334. 

international  copyright,  benefit  of,  extended  to,  72. 

Penal  Code  of,  forbids  extradition  of  Italian  subjects,  324. 

persons  adding  to  prevalence  of  disease  as  to  treaty  with,  206. 

right  of  consul  to  administer  on  estates,  202. 

treaty  with,  involved  in  suits  for  damages  in  Mafia  riots,  530. 

treaty  with,  as  basis  of  claim  against  government,  575. 

treaties  in  force,  Appendix,  page  693. 

Japan,  Calvin  Pratt   surrendered  by,  in  absence  of  treaty,  304. 

claims  of,  for  boycott,  544. 

Hawaiian  Islands,  objections  to  acquisition  of,  270. 

signature  obtained  by  fraud,  whether  extraditable  offense,  320,  note. 

suits  to  compel  attendance  at  public  schools,  159. 

treaty  provisions  as  to  attending  public  schools,  146. 

treaties  in  force,  Appendix,  pages  697-703. 

Japanese,  hostility  to,  necessity  for  laws  as  to  violation  of  treaty  obliga- 
tions, 479. 

Jay,  John,  comments  of,  in  treaty  power,  21. 
Jewels,  restoration  of,  in  extradition  proceedings,  363. 


838  INDEX. 

[References  are  to   Sections.] 

Judgments,  Canadian,  effect  of,  in  United  States,  443. 

conclusive  between  citizens,  435. 

court  of  claims,  590. 

decree  determining  title  under  grant,  has  effect  of,  292. 

foreign,  international  law  a  part  of  the  law  of  the  United  States,  434. 

foreign,  impeached  for  fraud,  440. 

foreign,  reciprocity  in,  435. 

foreign,  rule  in  England,  444. 

in  personam,  prima  facie  valid,  436. 

in  rem,  435. 

Mexican,  effect  of,  in  United  States,  442. 

naturalization,  order  of,  has  effect  of,  467. 

of  condemnation  annulled  by  treaty,  234. 

of  courts  in  seceding  states,  34. 

prior  conviction  does  not  authorize  arrest  of  extradited  person,  340. 

rendered  in  France,  effect  of,  437. 

suit  to   recover  part  of  judgment  rendered  by  Alabama   Claims   Com- 
missioners, 583. 

status   of  person  affected  by,   435. 
Jurisdiction.     See  Courts. 

convertible   with   term   "county,"   309. 

war  vessel  in  port  exempt  from  courts',  333. 
Jury,  exemption  of  consuls  from  service  on,  404. 

Kent,  Chancellor,  comments  on  treaties,  136. 
Kentucky,  aliens  do  not  take  by  descent  in,  251. 

treaty  overcomes  laws  of  alienage,  251. 
Key  West,  mob  riots  in  1851,  500. 
Kidnaping,  government  may  complain,  313. 

prisoner,  without  proceeding  under  treaty  of  extradition,  311,  312. 
Kongo,  treaties  in  force,   Appendix,   page   702. 
Korea,  treaties  in  force,  Appendix,  page  703. 

Labor,  aliens  on  public  works,  201. 

right  to,  included  in  property,  200. 

Laborer,  in  Chinese  exclusion  acts,  used  in  popular  sense,  191. 
Laches,  trademarks,  loss  of,  by,  280. 

Land  Commission,  perfected  claims  not  excluded  from,  286. 
Lands  includes  any  estate,  254. 

includes  vested  remainders,  254. 

not  included  by  word  "goods,"  249. 
Language.     See  Construction. 

in  French,  118. 

instructions  to  diplomatic  officers,  119. 


INDEX.  t  339 

[References   are  to   Sections.] 
Language,  treaties  formerly  in  Latin,  118. 

treaties  in  two  languages,  construction  of,  118,  120. 
vague  and  indefinite  terms  in  treaties,  122. 
Larceny,  fugitive  extradited  for,  cannot  be  tried  for  forgery,  336. 

Japan,  supplementary  treaty  as  to  extradition  for,  Appendix,  page  702. 
Laundries,  ordinances  concerning,  213. 
Law,  treaty  construed  as,  127. 
Lee,  Arthur,  commissioner  to  conclude  treaties,  8. 

selection  of  as,  commissioner  to  conclude  treaties,  8. 
Legislative  Action,  treaty  dependent  on,  85. 

treaty  dependent  on,  when  takes  effect,  87. 

Legislative  Power,  difference  between  and  treaty-making  power,  138. 
Lepers,  power  of  state  to  exclude,  190. 
Lesser   Offenses,    conviction    of   person   of,   extradited   under   a   charge    of 

greater,  339. 

Letter  Carriers,  suing  in  courts  of  claims,  588. 
Lew  Chew,  treaties  in  force,  Appendix,  page  704. 
Lewis,  William  Draper,  views  as  to  Japanese  attending  public  schools,  151- 

154. 

Liberia,  treaties  in  force,  Appendix,  page  704. 
License,  hemp,  manufacture  of,  protected  by  treaty,  279. 
of  aliens  for  privilege  of  mining,  239. 

state  laws  void  requiring  Indians  to  have  to  enter  territory,  388. 
Lincoln,  surrender  of  assassin  of  requested  from  governments,  334. 
Liquor,  regulation  of  traffic  in,  with  Indians,  388. 
Louisiana,  acquisition  of,  under  treaty  power,  268. 
grant  of  franchise  after  cession  of,  87. 
grant  perfected  under  Spanish  authority,  277. 
incomplete  titles  not  made  complete  by  acquisition  of,  283. 
inhabitants  of,  before  cession  becoming  citizens,  295. 
inhabitants  enjoying  equal  rights,  109. 
inhabitants  of,  protected  by  treaty  of  cession,  269. 
lynching  of  Italian  subjects  in,  534. 
statute  prohibiting  entry  of  persons  adding  to  prevalence  of  disease, 

206. 
statute  of,  does  not  render  city  liable  for  death  caused  by  mob  violence, 

530. 

treaty  for  cession  of,  Appendix,  page  652. 

Lourenco  Marques,  damages  for  rescission  of  concession  of  railroad  at,  567. 
Lubeck,  treaties  in  force,  Appendix,  page  689. 
Liineburg,   treaties   in  force,  Appendix,  page  626. 
Luxemburg,   attempt   against  life  of  head  of  government  not  a  political 

offense,  334. 
treaties  in  force,  Appendix,  page  704. 


840  INDEX. 

[References  are  to    Sections.] 

Lynching,  Italian  subjects,  534,  540. 

Mafia  riots  at  New  Orleans,  526-530. 

Mexican  shepherds  in  Texas,  responsibility  of  government  for,  473. 

MacMurdo,  Edward,  claim  of,  against  Portugal  for  seizure  of  railroad,  567. 
Madagascar,  colony  of  France,  Appendix,  page  705. 
Madison,  James,  comments  of,  on  treaty  power,  16,  133. 

proclamation  of,  as  to  action  of  France,  75. 
Mafia  Riots,  at  New  Orleans,  526. 

demands  of  Italian  government,  526. 

suits  to  recover  damages,  530. 

tender  of  indemnity,  529. 

withdrawal  of  American  minister,  528. 

Magistrate,  in  extradition  proceedings,  commissioner  of  federal  circuit  court 
may  act  as,  344. 

in  extradition  proceedings,  preliminary  examination  and  not  final  trial, 
344. 

in  extradition  proceedings,  judge  of  court  of  record  may  act  as,  344. 

in  extradition  proceedings,  who  may  act  as,  344. 

prisoner  arrested  on  extradition  proceedings  to  be  taken  to  the  nearest, 

348. 

Mails,   fraudulent  use   of,  persons   charged  with,   detained  instead   of  sur- 
rendered on  extradition,  358. 
Making  of  Treaties,  adding  declaration,  65. 

amendment  by  declaration  of  interpretation,  67. 

appropriation  of  money,  81. 

difference    between    treaty-making    power    in    England    and    in    United 
States,  58. 

executive  agreements,  70. 

legislative  action,  treaties  dependent  upon,  85. 

objections  to  lodging  power  with  President,  57. 

power,  where  placed,  54. 

power,  where  should  be  placed,  difference  of  opinion,  55. 

prerogative  of  executive,  60. 

protocols  within  executive  authority,  71. 

proviso  adopted  by  Senate,  66. 

ratification  by  Senate,  62. 

rejection  by  Senate,  63. 

Senate  resolution  controlling  meaning  of  treaty,  69. 

suspension  of  act  prohibiting  imports,  77. 

tariff  act,  suspension  of,  by  President,  73. 

treaty  inchoate  until  ratified,  61. 
Malice,  commitment  of  accused  for  extradition,  not  invalidated  by,  348. 


INDEX.  841 

[References   are  to   Sections.] 

Mallory,  Senator,  debate  as  to  Japanese  attending  public  schools,  149,  note. 

Mandate  in  extradition  proceedings,  343. 

Maritime  Warfare,  adoption  of  principles  of  Geneva  convention,  Appendix, 

page  787. 
Marriage,  judgment  dissolving,  435. 

white  person  to  Indian,  385. 

woman  marrying  foreigner  takes  nationality  of  her  husband,  471. 
Marshals,  counsel  may  be  employed  by  President  in  suits  for  acts  in  ex- 
tradition, 357. 

fees  of,  in  extradition  proceedings,  366. 
Maryland,  treaty  superseding  law,  235,  253. 
Massachusetts,  Continental  Congress  recommendation  for,  3. 

laws  of,  overcome  by  treaty,  254. 
McKinley,  President,  recommendation  of,  for  punishment  of  violation  of 

treaty  rights,  476-477. 

McLeod,  Alexander,  arrest  for  participation  in  destruction  of  steamer  ''Car- 
oline/' 505,  506. 

Measures,  treaty  for  international  bureau  of,  Appendix,  page  776. 
Mechanic's  Lien  Law,  ambassadors  not  exempt  from,  399. 
Mecklenburg-Schwerin,  treaties  in  force,  Appendix,  page  706. 
Mecklenburg-Strelitz,  treaties  in  force,  Appendix,  page    706. 
Memoranda,  on  slips,  to  conceal  embezzlement  not  forgery  in  English  law, 

318. 

Messages,    President   Arthur's    proclamation   as    to   products   of    Cuba   and 
Porto  Eico,  80. 

President  Cleveland  on  killing  of  Italians  in  Colorado,  531. 

President  Harrison  as  to  punishment  for  violation  of  treaty  rights,  474. 

President  Madison,  proclamation  of  as  to  France,  75. 

President  Monroe  relative  to  removal  of  discriminatory  duties,  77. 

President  McKinley  as  to  punishment  for  violation  of  treaty  rights,  476, 
477. 

President  Pierce,  proclamation  as  to  action  of  Newfoundland,  78. 

President  Koosevelt  as  to  punishment  for  violation  of  treaty  rights,  478. 

President  Washington  on  making  treaties,  60. 

President  Washington,  declining  to  give  facts  relative  to  Jay's  treaty, 

81. 
Mexican  Grants.     See  Grants. 

in  California,  require  confirmation,  171. 
Mexico,  adjustment  of  claims  against,  108. 

aliens  inheriting  under  laws  of,  226. 

bribery  an  extraditable  offense,  368. 

bribery,  supplemental  convention  as  to  extradition  for,  321. 

citizens  of  claiming  land  in  Texas,  265. 


842  INDEX. 

[References  are  to   Sections.] 

Mexico,   claim   of   for   hanging  Mexican   in   California,   543. 

consul  of,  appealing  in  extradition  proceedings,  355. 

crossing  of  frontier,  71. 

extradition  for  embezzlement  of  public  moneys,  317. 

extradition  treaty,  when  took  effect,  321. 

forgery,  under  extradition  treaty  with,  316. 

foreigner  acquiring  real  estate  becomes  a  citizen  of,  326. 

international  copyright,  benefit  of  extended  to,  72. 

judgments  rendered  in,  effect  of  in  United  States,  442. 

law  of  relative  to  extradition,  303. 

lynching  of  shepherds  in  Texas,  473. 

provisional  arrest,   in   extradition   proceedings,   349. 

refusal  of  United  States  to  deliver  citizens  to  under  extradition  treaty, 
325. 

regulations  of  department  of  state  as  to   extradition  from,  Appendix, 
page  589. 

Eio  Grande,  effect  of  treaty  on  dam  in,  297. 

statute  of,  discriminating  against  citizens  holding  real  estate  in  conflict 
with  treaty,  580. 

treaties  in  force,  Appendix,  pages  707-719. 

United   States   cannot   ask   surrender  of   fugitive   from   in   absence    of 
treaty,  303. 

willing  to   deliver  its  citizens  under  extradition  treaty  on  promise  of 

reciprocity,   326. 
Michigan,  laws  of  overcome  by  treaty,  255. 

valid  titles  only   protected  by  treaty,  255. 
Military  Service,  exemption  from  as  a  matter  of  comity,  463. 

foreign  residents,  462. 

service  in  temporary  civic  guard,  462. 

Militia,  city  not  relieved  from  damages  in  mob  violence  by  presence  of, 
554. 

consuls,  exemption  of,  404. 
Mining,  license  of  aliens  for  mining,  239. 
Mining  Claim,  right  of  alien  to  hold  title  to,  221. 
Ministers.     See  Ambassadors;  Consuls. 
Mob   Violence,    American    demands    on    China   for,    516. 

appropriation  for  killing  of  Italians  in  Colorado,  533. 

appropriation  for  Italians  lynched  at  Hahnville,  538. 

appropriation  for  wounding  British  subject  at  New  Orleans,  542. 

appropriation    for    hanging    of    Mexican    in    California,    543. 

arrest  of  McLeod,  505. 

boycott,  responsibility  of  government  for,  544. 

California,  hanging  of  Mexican  in,  543. 

Chile,  irregular  prosecution  of  an  American  citizen  in,  489. 

Chinese,  attacks  on  at  Denver,  511-513. 

Chinese,  attacks  on  at  Bock  Springs,  514-523. 


INDEX.  843 

[References  are  to   Sections.] 
Mob  Violence,  claims  made  for  redress  by  United  States,  480. 

Colombia,  responsibility  for  in  Montijo  controversy,  491. 

common  purpose  of  crowd,  554. 

constitutionality   of   statutes   imposing  liability  on   municipal   corpora- 
tions, 552. 

consul's  property  injured  through  negligence  of  government,  473. 

contention  of  Italian  ambassador,  534. 

courts  open  for  redress,  489. 

damages  for  interruption  of  business,  554. 

Department  of  State  not  a  court  of  error,  495. 

distinction  between  rights  of  consul  and  resident  foreigners,  501. 

destruction  of  French  privateers  at  Savannah,  497. 

employees  leaving  property  for  fear  of  mob,  554. 

evidence  that  party  could  not  reach  street,  550. 

federal  statute  authorizing  habeas  corpus  in  certain  cases,  510. 

gambling-house  keeper,  554. 

grounds  for  national  interference,  488. 

Italians  voting  as  a  bar  to  recovery,  537. 

injuries  to  Chinese,  524. 

inviolability  of  territory  of  independent  states,  509. 

killing  of  Italian  subjects  in  Colorado  in  1895,  531. 

Louisiana,  statute  of,  does  not  render  city  liable  for  death  caused  by, 
530. 

lynching  of  Italians,  534,  540. 

lynching  of  Mexican  shepherds  in  Texas,  473. 

Mafia  riots  at  New  Orleans,  526-530. 

Montijo    controversy,    490-494. 

New  Orleans  and  Key  West  riots,  500. 

not  negligence  to  employ  foreigners  not  speaking  English,  548. 

notice  of  threatened  to  be  given  to  authorities,  549. 

official  interference  limited  to  tortious  acts,  481. 

participation  by  owner  bars  recovery,  548. 

recommendation   of   President,   for   punishment   of  violation   of   treaty 
rights,  474-479. 

reputation  of  deceased  in  mitigation  of  damages,  547. 

responsibility  of  municipal  corporations  for,  545-554. 

rules  of  Department  of  State,  482. 

Shipley's   case,   487. 

steamer  ' '  Caroline, ' '  505. 

territory,  case  of,  515. 

treaty  to  indemnify  Chinese  for  attacks,  524. 

views  of  Senator  Edmunds,  523. 

Wheelock's  case,  483. 

William  Wilson's  case,  485. 

wounding  of  British  subject  at  New  Orleans,  541. 

Zambrano's  case,  486. 


844  INDEX. 

/ 
[References   are  to   Sections.] 

Modus  Vivendi,  power  of  President  to  make,  70. 
Money,  appropriation  of  pursuant  to  treaty,  81. 

legislative  sanction,  foreign  governments  presumed  to  know,  85. 

moral  obligation  on  Congress  to  appropriate,  when  required  by  treaty, 
82. 

payment  of  preliminary   installment,   61. 
Mongolians.     See  Chinese. 

license  on  for  mining,  240. 
Monopoly,  not  created  by  state  pilotage  laws,  204. 

patented  by  Spain  protected  by  treaty,  117. 
Monroe,  President,  proclamation  of  as  to  removal  of  discriminatory  duties, 

77. 
Montana,  attacks  on  Chinese  in,  524. 

boycott  of  Chinese  and  Japanese  in,  544. 

enabling  act  conferred  jurisdiction  over  crimes  by  Indians,  171. 
"Montijo,"  Steamer,  controversy  over,  490-494. 
Morocco,  treaties  in  force,  Appendix,  page  719. 

Morris,  Robert,  instructions  signed  by  relative  to  entering  into  treaties,  8. 
Mortgage,   acknowledgment   of   by   deputy    consul    general,   458. 

title  of  alien  protected  by  treaty,  236. 
Most  Favored  Nation  Clause,  construction  of,  131. 

does  not  extend  to  pilotage  laws  as  to  coast  vessels,  131. 

extradition  does  not  extend  to,  131. 

right  of  administration  conferred  by,  131. 

what  not  granted  by,  131. 

Movable.     See  Words  and  Phrases;   Things  Movable. 
Municipal  Corporations.     See  Ordinances  of  Municipal  Corporations. 

claims  against  for  mob  violence  should  be  established  with  reasonable 
certainty,  553. 

common  purpose  of  crowd  in  mob  violence,  554. 

constitutionality  of  statutes,  imposing  liability  for  mob  violence,  552. 

damages  for  interruption  of  business  by  mob  violence,  554. 

employees   leaving   property,   no    defense    in    actions    against    for    mob 
violence,  554. 

gambling-house  keeper  not  entitled  to  in   mob  violence  when   dispute 
arises  over  gambling  transaction,  554. 

inability  to  suppress  riot  no  bar  to  damages,  553. 

liability  for  mob  violence  imposed  by  statute,  546. 

liberal  construction  of  statutes  imposing  liability  on  for  mob  violence, 
553. 

militia  does  not  in  cases  of  mob  violence  relieve  damages  against,  554. 

not  liable  at  common  law  for  damages  by  mobs,  545. 

not  negligence  to  employ  foreigners  not  speaking  English,  548. 

not  relieved  from  liability  in   mob  violence  because  tried  to   prevent, 
554. 


INDEX.  ,  845 

[References   are  to   Sections.] 

Municipal  Corporations,   notice   to   be   given   of   threatened   mob   violence, 
549. 

owner  of  property  not  required  to  maintain  police  force,  548. 

participation  by  owner  in   mob  violence   bars  recovery,  548. 

party  participating  in  riot,  546. 

receiving  checks  for  money  due  to,  as  extraditable  offense,  317. 

reputation  of  deceased  in  actions  against  for  mob  violence,  547. 

statute  of  Louisiana  does  not  render  city  liable  for  death  caused  by 
mob  violence,  530. 

sufficient  time   to  give  notice  of  threatened  mob   violence,  551. 

verbal  notice  of  threatened  mob  violence,  549. 

Murder,  committed  on  high  seas,  on  board  British  war  vessel,  extraditable, 
318. 

interpretation  of  accruing  law  of  both  countries,  320. 

treaty  denning,  319. 

Muscat,  treaties  in  force,  Appendix,  page  721. 
Mutual  Consent,  termination  of  treaty  by,  95. 

Nassau,  treaties  in  force,  Appendix,  page  722. 
Native-born  Citizen,  aliens  taking  from,  258. 
Naturalization,   allegiance,   American   doctrine,   461. 

allegiance  perpetual,  460. 

child  born  within  the  United  States  of  alien  parents,  471. 

citizens  in  ceded  territory,  295,  466. 

collective  by  admission  of  state,  469. 

naturalized  citizens  entitled  to  same  protection  as  native  born,  461. 

no  retroactive  effect  of,  569. 

order  admitting  to  citizenship  has  effect  of  judgment,  467. 

setting  aside  certificate  of  citizenship,  468. 

treaties  of,  464,  465. 
Navigable  Waters,  treaty  applying  to  Porto  Eico,  86. 

bridge,  when  not  a  nuisance,  174. 

power  of  state  over,  172. 
Neat  Cattle,  importation  of  prohibited,  79. 
Nebraska,  boundary  line  with  South  Dakota,  45. 

constitution  of  superseded  by  treaty  with  France,  236. 
Negligence,  city  not  liable  for  death  caused  by,  in  absence  of  statute,  530. 

property  of  foreign  consul  injured  through  government's,  473. 

suits  for  death  of  Italians  in  Mafia  riots,  530. 
Netherlands,  bribery,   an    extraditable   offense,   368. 

"effects,"  meaning  in  treaty  with,  260. 

international  copyright,  benefit  of  extended  to,  72. 

treaties  in  force,  Appendix,  page  722. 
Neutrality,  ambulances  and  hospitals,  Appendix,  page  775. 


846  INDEX. 

[References  are  to   Sections.] 

Neutrality  Laws,  claims  for  breach  of  not  presented  by  government,  568. 
New  Granada,  treaties  in  force,  Appendix,  page  636. 
New  Mexico,  rights  retained  after  cession,  273. 

statutes  as  to  public  lands  in,  293. 
New  Orleans,  Mafia  riots,  526-530. 

mob   riots   in    1851,   500. 

wounding  of  British  subject  at,  541. 
New  York,  aliens  have  same  rights  as  resident  heirs,  259. 

Declaration  of  Independence,  immigration  after,  256. 

interest  allowed  to  state  for  money  borrowed  from  canal  fund,  580. 

limitation  on  time  to  sell,  257. 

Kevolution  did  not  forfeit  vested  rights,  256. 

title,  existence  of  at  time  of  treaty,  258. 
Nicaragua,  protocol  as  to  interoceanic  canal,  71. 

suspension  of  tariff  act  as  to,  73,  note. 

treaties  in  force,  Appendix,  page  726. 
Nonintercourse  Act,  modified  by  treaty  with  Indians,  171. 

renewal  of  trade,  75. 
North  Carolina,  confiscation  acts  of,  annulled  by  treaty,  261. 

grant  under  as  basis  of  claim,  264. 

interest  not  payable  on  bonds  of,  579. 

laws  of  overcome  by  treaty,  260. 

North  German  Confederation,  treaty  of  naturalization  with,  464. 
North  German  Union,  treaties  in  force,  Appendix,  page  727. 
Norway,  international  copyright,  benefit  of  extended  to,  72. 

treaty  of  naturalization  with,  464. 

treaties  in  force,  Appendix,  page  727. 
Notice,  sufficient  time  to  give  in  cases  of  mob  violence,  551. 

termination   of  treaties  by,  98. 

threatened  mob  violence,  549. 

verbal,  of  threatened  mob  violence,  549. 
Nuisance,  bridge    over  navigable  stream  when  not,  174. 

Occupancy,  Indian's  title  only,  383. 
Office   Found.     See  Aliens. 

Kentucky,  title  vests  in  state  without,  251. 

necessary  to  devest  alien  of  title,  221. 
Officer,  in  extradition,  not  liable  for  expenses,  364. 
Official  Documents,  convention  for  exchange  of,  Appendix,  page  780. 
Oklahoma,  act  creating  superior  to  treaty  exempting  Indian  lands,  171. 

taxation  of  cattle  in,  171. 

Oldenburg,  incorporated  in  North  German  Union,  Appendix,  page  728. 
Operation,  when  treaties  go  into.     See  Effect. 
Orange  Free  State,  treaties  in  force,  Appendix,  page  728. 


INDEX.  847 

[References  are  to   Sections.] 
Ordinance  of  Secession  a  nullity,  31. 
Ordinances  of  Municipal  Corporation   prohibiting  laundries  and  washhouses, 

213. 

unequal  administration  of  ordinance,  213. 
Oregon,  bridge  over  Willamette  river,  174. 

statute  prohibiting  employment  of  aliens  in  public  works,  201. 
Ottoman  Empire,  treaties  in  force,  Appendix,  page  729. 

Panama,  treaties  in  force,  Appendix,  page  730. 

Panama  Canal  Zone,  suit  to  prevent  payment  of  money  for,  144. 

Paraguay,  treaties  in  force,  Appendix,  page  732. 

Parana  River,  treaty  for  free  navigation  of,  Appendix,  page  611. 

Paris,  treaty  of,  as  to  citizens  of  Porto  Eico,  295. 

Partition,  alien  friend  may  maintain,  228. 

Passport,  of  consul  as  evidence,  401. 

Patent,  devesting  title  of  United  States  to  Indian  lands,  381. 

Mexican  grant,  collateral  attack  not  permitted,  285. 

protected  under  treaties  of  cession,   279. 

surrender  by  United  States  of  all  land  described  therein,  292. 
Paupers,  power  of  state  to  exclude,  190. 
Pennsylvania,  laws  of,  overcome  by  treaty,  262. 
Persia,  treaties  in  force,  Appendix,  page  733. 
Personal  Property,  alien  has  power  to  take,  229. 
Persons.     See  Aliens;  Citizens. 

embraced  by  term  "citizens,"  324. 
Peru,  treaties  in  force,  Appendix,  page  733. 
Philippine  Islands,  copyright  in,  protected  by  treaty,  279. 

patents  in,  protected  by  treaty,  279. 

resolution  of  Senate  as  to  treaty  with,  69. 

treaty  for  cession  of,  Appendix,  page  757. 
Phrases  and  Words.     See  Words  and  Phrases. 
Pilcomayo  Mutineers,  surrender  of,  332. 
Pilotage  Laws,  exemption  of  American  coast  vessels,  131. 

monopoly  not  created  by,  204. 

treaty  does  not  supersede,  204. 

Pinkney,  William,  comments  of,  on  treaty  power,  137. 
Piracy,  extradition  treaties,  within  meaning  of,  330. 
Pleading,  Bowman  Act,  585,  586. 

cause  of  action  depending  on  treaty  to  be  stated,  114. 

court  of  claims,  583,  584. 

definite  issue  as  to  claim  of  right,  113. 

detention  of  person  on  charge  other  than  that  for  which  he  was  ex- 
tradited, 337. 


848  INDEX. 

[References  are  to  Sections.] 

Pleading,  in  extradition,  no  plea  to  be  received  except  legal  one,  359. 

incapacity  of  alien  to  be  raised  by  plea  in  abatement,  228. 

irregularities  in  extradition,  311. 

Tucker  Act,  587-590. 

Poisoning,  administered  in  United  States,  death  in  Canada,  extradition  on 
charge  of,  310. 

treaty  with  Salvador  defining,  319. 
Poles    subjects  of  Prussia,  263. 

Police,  owner  of  property  not  required  to  maintain,  to  avert  mobs,  548. 
Police  Power,  prevention  of  intrusion  on  Indian  lands,  216. 

state  may  exclude  dangerous  foreigners,  190. 

state  supreme  in,  213. 
Political  Offense,  attempt  against  life  of  President,  334. 

Belgium,  treaty  with,  affecting,  334. 

Brazil,  treaty  with  as  to  attempt  to  take  life  of  President,  334. 

committing  magistrate  to  determine  whether  offense  is,  328. 

definition  of,  335. 

Denmark,  treaty  with  affecting,  334. 

extradition  not  granted  for,  328. 

final  decision  as  to  what  is,  rests  with  government  in  which  fugitive 
has  found  refuge,  329. 

Luxemburg,  treaty  with  affecting,  334. 

Pilcomayo  mutineers,  332. 

Kussia,  treaty  with,   affecting,   334. 

raid  at  San  Ignacio,  331. 

Political  Question,  power  to  make  treaties,  93. 

Population,  views  of  not  consulted  in  acquisition  of  territory,  270. 
Portland,  shipping  commissioner  of,  requiring  proof  in  cases  of  dissenting 

seamen,  367. 
Porto  Kico,  as  foreign  territory,  84. 

ceasing  to  remain  foreign  territory,  185. 

duties  on  products  of,  suspended,  80. 

governor  of,  may  issue  requisition  for  fugitive  criminal,  342. 

inhabitants  of  as  citizens,  295. 

status  of  inhabitants  of  left  to  Congress,  294. 

treaty  applying  to  navigable  waters  of,  86. 
Portugal,  commercial  agreements  with,  73,  note. 

international  copyright,  benefit  of,  extended  to,  72. 

protocol  for  settlement  of  claims  for  destruction  of  railroad,  567. 

seizure  of  railroad  constructed  by  American  citizens,  567. 

treaties  in  force,  Appendix,  page  737. 
Possession,  abandonment  of  by  Indians,  382. 

purchaser  from  Indians  acquires  only,  382. 
Possessory  Rights,  not  protected  by  treaties,  255. 
Postal  Conventions  concluded  with  certain  countries,  72. 
Postal  Service,  letter  carriers  suing  in  court  of  claims,  588. 


INDEX.  849 

[References  are  to  Sections.] 

Pratt,   Calvin,   Japan   surrendering  in  absence  of  treaty,   304. 
Pre-existing  Treaties,  included  in  constitution,  164. 
President,  attempt  against  life  of,  as  a  political  offense,  334. 

See  Messages. 

certificate  of  criminality  before  ordering  extradition,  358. 

Cleveland,  message  of,  on  killing  of  Italians  in  Colorado,  531. 

counsel  may  be  employed  by,  in  suit  against  marshals  in  extradition 
proceedings,   357. 

executive  agreements,  70. 

objections  to  lodging  power  to  make  treaties  with,  57. 

power  to  make  treaties,  54. 

protocols  within  executive  authority,  71. 

ratification,  may  withhold  treaty  from,  64. 

surrendering  fugitive  on  charge  different  from  that  on  which  he  was 
extradited,  358. 

surrender  of  fugitive  refused,  if  evidence  deemed  insufficient,  357. 

tariff  act,  suspension  of,  by,  73-80. 

tariff   acts,   suspension   of,   by,   73. 
President    Arthur,  proclamation  of  as  to  products  of  Cuba  and  Porto  Eico, 

80. 

President  Madison,  proclamation  by,  as  to  action  of  France,  75. 
President  Monroe,  proclamation  of,   concerning  removal  of  discriminatory 

duties,  77. 

President  Pierce,  proclamation  of  as  to  action  of  Newfoundland,  78. 
President  Washington,  declination  to  give  facts  as  to  Jay's  treaty,  81. 

special  message  of,  on  making  treaties,  60. 

suggestion  of,  as  to  oral  communications  in  making  treaties,  62. 
Princess  of  Orange,  jewels  of,  restored  to,  taken  in  extradition  proceedings, 

363. 
Prior  Charge,  extradited  prisoner  cannot  be  arrested  on  prior  judgment  of 

conviction,  340. 
Proclamations.     See  Messages. 
Prohibitions  on  States  to  Make  Treaties.     See  Compacts  Between  States. 

Confederacy  an  organized  treason,  29. 

Confederate  states  had  no  legal  existence,  24. 

contracts  to  aid  the  confederacy  void,  30.  « 

executor,  investing  in  Confederate  bonds,  discharge  of,  28. 

extradition,  states  cannot  negotiate  for,  36. 

extradition,  treaties  now  govern,  38. 

investment  by  guardian  in  Confederate  bonds,  29. 

laws  in  aid  of  insurrection  void,  33. 

ordinance  of  secession  a  nullity,  31. 

prohibitory  clauses  of  Constitution,  22. 

sale  of  property  of  loyal  owners  by  Confederate  states,  32. 

surrender  of  treaty  power  to  general  government,  26. 
Treaties — 54 


850  INDEX. 

[References  are  to  Sections.] 
Property,  definition  of,  276. 

every  species  of  title  included  by,  278. 

includes  right   to  labor,  200. 

restoration  of,  in  extradition  proceedings,  363. 

trademarks,  included  in  term,  279. 
Protocol,  China,  by  allied  powers,  71. 

construction  of  interoceanic  canal,  Appendix,  page  639. 

construing  provisions  as  to  submarine  cables,  68. 

judicial  procedure,  concerning,  70. 

interoceanic  canal,  71. 

Mexico,  troops  crossing  frontier  of,  71. 

power  of  President  to  make,  70. 

Provisional  Arrest,  extradition  proceedings,  treaty  with  Mexico,  349. 
Provisional  Detention.     See  Extradition. 

of  fugitives  from  justice,  Appendix,  pages  581-584. 
Proviso,  adopted  by  Senate,  66. 

when  directory,  65. 
Prussia,  alien  taking  from  native-born  citizen,  258. 

embezzlement  of  public  moneys  under  treaty  with,  317. 

Poles  are  subjects  of,  263. 

South  Carolina,  laws  of,  subject  to,  263. 

treaties  in  force,  Appendix,  page  738. 

Waldeck,  citizens  affected  by  treaty  with,  250. 
Public  Moneys,  cashier  of  government  savings  bank  embezzling  funds,  317. 

extradition  for  embezzlement  of,  317. 

false  certification  of  invoices,  317. 

recovering  checks  for  money  due  to  municipality,  317. 
Public  Policy,  claims  based  on  acts  against  will  not  be  presented,  566. 

courts,  on  ground  of,  may  refuse  to  subject  fund  in  state  to  payment 

of  debt  due  foreign  corporation,  161. 
Public  Schools,  colored  children  in  separate  schools,  160. 

debate  in  United  States  as  to  Japanese  children,  149,  and  note. 

Japan,  treaty  with  as  affecting,  145,  146. 

resolution  excluding  Japanese  children  from,  148. 

right  to  attend  based  on  treaty,  145-159. 

suits  by  government  in  behalf  of  Japanese  children,  159. 

views  of  William  Draper  Lewis,  151-153. 

views  of  Secretary  Eoot,  155-157. 
Public  Works,  employment  of  aliens  on,  201. 

Pueblo  Indians,  title  of  not  defeated  by  change  of  sovereignty,  277. 
Purchase,  includes  acquisition  by  devise,  223. 
Purchaser    from  Indians   acquires   only  right   of   possession,  382. 


INDEX.  851 

[References  are  to  Sections.] 

Railroad,  claim  of  American  citizens  for  destruction  of  by  Portugal,  567. 
Randolph,     Governor,    resolutions     offered    by    in     constitutional     conven- 
tion, 163. 
Ratification,  authority  of  person  ratifying  cannot  be  questioned,   128. 

by  Senate,  62. 

exchange  of  has  retroactive  operation,  86. 

President  may  withhold  treaty  from,  64. 

treaty  inchoate  until  ratified,  61. 

treaty  relates  back  to  signature,  61. 

treaty  affecting  individual  rights  does  not  take  effect  until,  91. 
Rayner,  Senator,  resolution  affecting  Japanese  attending  public  schools,  149. 
Real  Estate.     See  Aliens;  Inheritance,  etc. 

Real  Property,  Mexican  statute  discriminating  against  citizens  in   conflict 
with  treaty,  581. 

questions  involving  controlled  by   laws   of   state   where   situated,   580. 
Receiver,  claiming  fund  before  court  of  claims,  584. 
Reciprocal  Agreements,  suspension  of  tariff  act,  73. 
Reciprocal  Concessions  may  be  made,  169. 
Reciprocity,  extradition  of  Kratz  for  bribery,  321. 

in  foreign  judgments,  435. 

Reclamation  Assessment,  suits  against  consul  for,  413. 
Rents,  alien  heir  enjoying,  259. 
Repeal  of  Treaties,  by  acts  admitting  states,  170,  171. 

by  implication  not  favored,  178. 

by  subsequent  act  of  Congress  of,  167. 

subject  matter  covered  by  another  treaty,  99. 
Replevin,  logs  not  cut    for  improvement  may  be  recovered  by  United  States 

by,  380. 

Repugnant  Clauses,  rules  for  construction  of,  126. 
Requisition,  application  for  in  extradition  proceedings,  342. 

in  extradition,  regulations  of  State  Department  concerning,  369. 

in  extradition,  two  charges  in  two  different  states,  358. 

must  come  from  supreme  political  authority  of  state,  342. 
Reservations  of  Indians,  lands  of  taxed,  170. 

Indian  may  be  indicted  for  murder  committed  outside  of,  216. 
Residence,  foreign  corporations  seeking  to  have  fund  sent  to  foreign  country 
for  administration,  161. 

foreign  heirs  may  inherit,  250. 

Residing  in  the  State,  words  construed  in  statute,  243. 
Resignation  of  political  agent  of  foreign  government  as  bar  to  certiorari, 

400. 

Restoration,  property    in  extradition   proceedings,  363. 
Retroactive  Effect  of  treaties,  92. 


852  INDEX. 

[References  are  to  Sections.] 

Retroactive  Laws,  statutes  removing  disability  of  alienage  not,  227. 
Retrospective  Operation,  Chinese  exclusion  acts  not  to  have,  189. 

of   treaties   to   be    avoided,    177. 
Revolution,  vested  rights  not  forfeited  by,  256. 
Riparian  Rights,  lot  owners  buying  in  accordance  with   acts  of  Congress, 

277. 

Rio  Grande,  dam  in,  297. 
Riots.     See  Mob  Violence;  Municipal  Corporations. 

inability  to  suppress  no  bar  to  damages,  553. 

party  participating  in  cannot  recover  damages  from  city,  546. 

reputation  of  deceased  in  actions  against  cities,  547. 

responsibility   of   municipal   corporations   for,    545-554. 
Rock  Springs,  attack  on  Chinese  at,  514-523. 
Roosevelt,  President,  recommendation  of,  for  violation  of  treaty  rights,  478, 

479. 

Root,  Secretary,  views  of  as  to  public  schools,  155-157. 
Roumania,  treaties  in  force,  Appendix,  page  741. 

Russia,  attempt  against  life  of  head  of  government  not  a  political  offense, 
334. 

consul,  administering  on  estates,  202. 

treaty  authorizing  arrest  of  deserters,  117. 

treaties  in  force,  Appendix,  page  742. 

Sale,  interest  of  heir  in  Virginia,  232. 

time  to  sell  under  treaty  with  Wurttemberg,  247. 
Salvador,  extradition  proceedings  as  to  refugees  from,  310. 

killing  of  person  by  President  of,  not  extraditable  offense,  319. 

murder  in  treaty  with,  defined,  319. 

suspension  of  tariff  act  as  to,  73,  note. 

treaties  in  force,  Appendix,  page  745. 
Samoan  Islands,  acts  providing  for  neutrality  of,  Appendix,  page  747. 

Germany's  operations  in,  272. 
San  Francisco,  case  of  Dillon,  French  consul,  416. 

Japanese  children  attending  public  schools,  145. 

shipping  commissioner  of,  requiring  proof  in  case  of  deserting  seamen, 

367. 

San  Ignacio,  raid  at,  331. 

Sardinia,  treaties  in  force,  Appendix,  page  749. 

Savannah,  destruction  of  French  privateers  at  by  mob  violence,  497. 
Saxony,  treaties  in  force,  Appendix,  page  749. 
Schaumburg-Lippe,    treaties    in    force,    Appendix,    page    749. 
Schools.     See  Public  Schools;   Separate  Schools. 
Scotland,  natives  of,  prior  to  Revolution,  prima  facie,  not  aliens,  264. 


INDEX.  853 

[References  are  to  Sections.] 

Seal,  consul,  judicial  notice  of,  457. 

Seals,  modus  vivendi,  as  to,  70. 

Seamen,  American,  not  bound  by  treaty  provisions,  453. 

certificate  of  American  consul  of  desertion  by  in  suit  for  wages,  454. 

consuls,  jurisdiction  of,  over,  212. 

consul,  powers  of,  relating  to,  453. 

deserting,  surrender  of  in  absence  of  treaty,  367. 

deserting  from  ships  of  war,  Russian  treaty,  117. 

discharge  of  by  consul  not  conclusive,  454. 

federal  courts  have  jurisdiction  in   case   of   malicious  assault  by  cap- 
tain on,  448. 
Secession,  confederacy  an  organized  treason,  29. 

laws  in  aid  of  void,  33. 

loyal  owners,  sale  of  property  of,  32. 

ordinance  of,  a  nullity,  31. 

Secret  Correspondence,  committee  on,  under  Continental  Congress,  8. 
Self -executing  Treaties,  appropriation  of  money,  185. 

enforced  by  courts,  185. 

legislation  to  make  effective,  185. 
Senate,  amendments  to  treaties  by,  63,  64. 

debate  in  on  Japanese  children  attending  public  schools,  148. 

proviso  adopted  by,  66. 

ratification  of  treaties  by,  62. 

rejection  of  treaties  by,  63. 

resolution  controlling  meaning  of  treaty,  69. 
Separate  Schools,  controversy  as  to  Japanese  children,  145-159. 

colored  children  may  be  sent  to,  160. 

for  colored  children,  must  have  equal  facilities,  161. 
Servant,  ambassador's,  exempt  from  laws,  399. 
Servia,  treaties  in  force,  Appendix,  page  750. 
Shipley,   Dr.,    claim   of   for   mob   violence,   487. 
Shipping,  consuls'  powers  relative  to,  453. 

Shipping  Commissioners,  deserting  seamen,  requiring  proof  in  cases  of,  367. 
Siam,  treaties  in  force,  Appendix,  page  751. 
Sicily,  treaties  relating  to,  Appendix,  page  768. 

Sick  Persons,   adding   to   prevalence    of   disease   prevented   from   entering 
state,  206. 

power  of  state  to  exclude,  190. 
Signature,  consul,  judicial  knowledge   of,  457. 

treaty  takes  effect  from  date  of,  86. 

treaty,  when  ratified  relates  back  to,  61. 

Simoneski  Indemnities,  treaty  for  payment  of,  Appendix,  page  699. 
Sixth  Amendment  protects  aliens,  196. 
Slave  Trade,  amendment  to  treaty  concerning,  64. 

treaty  for  repression  of,  Appendix,  page  781. 
Slaves,  treaty  with  Great  Britain  referring  to,  Appendix,  page  668. 


854  INDEX. 

[References  are  to  Sections.] 

South  African  Republic,  extradition  from  when  allowed,  310. 

South  American  Republics,  resort  to  courts  of  for  collection  of  claims,  574. 

South  Carolina,  dispensary  act  not  violative  of  treaty,  209. 

laws  of,  overcome  by  treaty,  263. 
South  Dakota,  boundary  line  with  Nebraska,  45. 
Sovereignty,  passes  by  treaty  of  cession,  269. 

transferred  at  date  of  treaty,  87. 
Spain,  cession  of  Porto  Eico,  ceasing  to  be  foreign  territory,  185. 

concessions  from,  confirmed  by  Congress,  277. 

copyrights  respected  by  treaty  with,  279. 

Florida,  as  to  lands  in,  65. 

grant  from  overcoming  act  of  Congress,  277. 

international  copyright,  benefit  of  extended  to,  72. 

monopoly  patented  by  law  of  protected  by  treaty,  117. 

patents,  protected  by  treaty  with,  279. 

power  to   make  grants  on  any  consideration,   278. 

Senate,  resolution  controlling  meaning  of  treaty  with,  69. 

suspension  of  tariff  act  as  to,  73,  note. 

treaty  with  applies  to  navigable  waters  of  Porto  Rico,  86. 

treaties  in  force,  Appendix,  pages  753-763. 

Tweed,  delivery  of  as  a  matter  of  comity,  300. 

United  States  successor  to,  as  to  titles  in  Louisiana,  283. 
Special  Arrangements,  not  prohibited  by  general  clauses  in  treaty,  169. 
State  Constitutions,  labor  of  aliens  for  corporations,  200,  201. 

treaty  in  conflict  with  provisions  of  Nebraska  constitution,  236. 
State  Department,  not  a  court  of  error,  495. 

rules  of  as  to  presentation  of  claims  for  mob  violence,  482. 
States.     See  Constitutions;  Compacts  Between  States;  Confederate  States; 
Prohibition  on  States. 

act  admitting  as  affecting  treaty,  170. 

act  admitting  affecting  right  to  tax  Indian  lands,  170. 

aliens  cannot  enjoin  attorney  general  of  from  collecting  taxes,  559. 

compacts  between,  construed,  46. 

consuls  may,  by  permission  of  Congress,  be  sued  in  courts  of,  411. 

contract  of  to  exempt  property  from  taxation,  51. 

in  extradition,  two  charges  by  two  different  states,  358. 

in  extradition,  expenses  to  be  paid  by,  364. 

in  extradition,  payment  of  expenses  by  county,  366. 

internal   police,   right   to   regulate,   170. 

may   refuse   to    subject   fund   to    attachment   for    payment    of   debt   to 
foreign  corporation,   161. 

no  remedy  against  for  breach  of  contract,  559. 

pilotage  laws  of  not  superseded  by  treaty,  204. 

police  power,  excluding  dangerous  foreigners,  190. 

power  over  navigable  waters,  172. 

refusal  to  observe  treaty  with  Great  Britain,  10. 


INDEX.  (  855 

[References  are  to  Sections.] 
States,    regulating    inheritance    of    property,    241. 

suing  other  state  as  assignee  of  bonds,  573. 

suit  by,  against   other  states,  559. 

treaties,  prohibited  from  making,  22-38. 
Statutes.     See  Acts  of  Congress;  Construction. 

alienage,  removing  disability  of  not  retroactive,  227. 

attainder,  treaty  overcoming,  262. 

authorizing   governor   in   his    discretion   to   deliver   fugitives,   unconsti- 
tutional, 308. 

bridge,  authorizing  building  of,  174. 

dispensary  act  of  South  Carolina  not  violative  of  treaty,  209. 

escheat,  law  passed  while  proceedings  pending  constitutional,  225. 

escheat,  legislation  when  required,  225. 

exempting  foreign  citizens  from  succession  tax,  210. 

imposing    liability    on    municipal    corporations    for    mobs,    546. 

in  absence  of,  city  not  liable  for  failure  to  protect  life,  530. 

liberal  construction  of,  imposing  liability  on  municipal  corporations  for 
mob  violence,  555 

license  on  foreign  miners,  239,  240. 

prohibiting  employment  of  aliens  on  public  works,  201. 

prohibiting    persons    adding    to    prevalence    of    disease    entering    state, 
206. 

property    to    one    heir    violating   treaty,    256. 

relating  to   escheat,  method  must  be  followed,  223. 

repeal  of  by  implication,  184. 

Statutes  of  Limitation,  claims  before  court  of  claims,  584. 
Stockholders,  aliens  may  become  in  corporations,  229. 
Subjects,  foreign  corporations  are  not,  296. 
Submarine  Cables,  protection  of,  Appendix,  page  779. 

protocol  construing  convention  as  to,  68. 
Subpoena,  American  consuls  as  witnesses,  427-429. 

consuls,  in  behalf  of  prosecution,  422. 

consul  as  witness  before  state  court,  425. 

Succession  Tax,  treaty  exempting  foreigner  from  payment  of,   210. 
Sugar,  Hawaiian  Islands,  admitted  free  of  duty,  169. 
Suits,  against  consuls,  411. 

by  relatives  of  Italians  killed  in  Mafia  riots,  530. 
Sulu,  agreement  acknowledging  sovereignty  of  United  States,  72. 
Supreme  Law  of  Land,  treaties  are,  162,  163. 
Surratt,  John  H.,  surrender  of,  for  complicit}'  in  assassination  of  President 

Lincoln,  334. 
Surrender.     See  Extradition. 

of   fugitive,   an   executive   function,   357. 

of  fugitive,  upon  different  charge,  358. 
Survey,  Mexican  grant   unassailable  until   made,  282. 

necessary  when  to  specify  grant,  285. 


856  INDEX. 

[References  are  to  Sections.] 

Suspension  of  Acts  of  Congress  by  the  President,  73-80. 
Sweden,  "biens,"  construction  of,  246. 

" goods "  not  including  " lands"  in  treaty  with,  249. 

treaties  in  force,  Appendix,  pages  759-762. 

treaty  of  naturalization  with,  464. 
Swiss  Confederation,  disposition  of  property  by  treaty,  231. 

treaty  with  paramount  to  state  law,  252. 
Switzerland,  citizens  of  delivered  under  extradition   treaties,   325. 

international  copyright,  benefit  of  extended  to,  72. 

treaties  in  force,  Appendix,  page  763. 

Tariff  Acts,  Cuba  and  Porto  Eico,  suspending  duties,  80. 

Porto   Rico,   foreign   territory,    84. 

sugar,  admission  of  from  Hawaiian  Islands,  169. 

suspension  of  by  President,  73-80. 

Tariff   Laws,    effect    of   upon    treaty    stipulations,    169. 
Taxation,  contract  of  state  to  exempt  property  from,  51,  52. 

Indian  lands,  387. 

license  of  aliens  for  mining,  239. 

Taxes,   aliens  cannot  enjoin  attorney  general  of  a  state  from   collecting, 
559. 

internal  revenue  taxes  paid  without  protest,  interest  not  allowed  on, 
580. 

treaty  devesting  state  of  right  to  tax,  210. 

upon  Indian  reservations  when  void,  170. 
Tehuantepec,  transit  of  isthmus  of,  Appendix,  page  710. 
Telegrams,  arrest  of  fugitives  from  justice  on,  348. 
Tennessee,  boundary  line  with  Virginia  established,  41,  127. 

laws  of  subject  to  treaty,  264. 
Termination  of  Treaties  by  notice,  98. 

by  subsequent  treaty  covering  subject  matter,  99. 

how  affected,  95. 

renewal  by  tacit  consent,  96. 

violation  by  one  of  the  parties,  96,  97. 
Territory.     See   Acquisition   of   Territory. 

in  extradition,  expenses  to  be  paid  by,  364. 
Texas,  aliens  holding  real  estate,  221. 

cession  of  did  not  devest  titles,  273. 

laws  of  subject  to  treaty,  264. 

treaties  relating  to,  Appendix,  page  765. 
Things  Movable.     See  Words  and  Phrases. 

effects  include,  260. 
Third  Person,  title  in  under  treaty,  106. 


INDEX.  ,  857 

\ 

[References  are  to  Sections.] 
Tide  Lands,  title  to,  274. 
Timber,  cutting  by  Indians,  380. 
Title.     See  Aliens;   Curtesy;    Descent;   Inheritance;   Treaties. 

arising  under  treaty  may  be  decided  by  federal  courts,  100. 

cession,  treaties  of  do  not  devest,  273. 

existence  of  at  time  of  treaty,  258. 

of  Indians  but  a  right  of  occupancy,  383. 
Tolls,  property  of  the  state  as  soon  as  collected,  317. 
Tonga,  treaties  in  force,  Appendix,  page  765. 
Trademarks,  loss  of,  by  laches,  280. 

" property"  includes,  279. 

protected  under  treaty  of  cession,  279. 

public  property  in  county  of  its  origin,  205. 

protected  by  treaty,  205. 

Transit  across  United  States  in  extradition,  362. 
Transitory  Actions,  aliens  suing  in  court,  219. 
Translation,  in  extradition,  payment  for  expenses  of,  366. 
Treason,  attainder  for,  262. 
Treaties,  abrogation  must  clearly  appear,  182. 

acts  of  admission  affecting  navigable  waters,  172. 

adoption  of  constitution  enabled  enforcement  of,  14. 

arrest  on  prior  conviction,  179-181. 

articles  of  confederation  under,  6. 

attainder,  statute  of,  overcome  by  treaty,  262. 

authority  of  courts,  93. 

bridges  across  rivers,  174. 

cession,  267-297. 

China,  no  reciprocity  in  treatment  of  citizens,  520. 

Chinese  exclusion  acts,  186-193. 

chronological  list  of,  Appendix,  page  791. 

committee  of  Continental  Congress  to  prepare  plans  of,  4. 

compacts  are,  1. 

confiscation  acts  annulled  by,  261. 

consuls,  jurisdiction  of  by,  447. 

construction  of,  115-161. 

construction  of,  province  of  courts,  94. 

construction,  absurd  conclusion  to  be  avoided,  177. 

Continental  Congress,  under,  8. 

Continental   Congress   unable   to   guarantee   observance   of   obligations 
of,   9. 

Continental  Congress  proposing  treaty  to  France,  8. 

contract  for  services  to  set  aside,  cannot  be  recognized  as  a  basis  of  a 

claim,  566. 
contract  as  well  as  law,  115,  168. 

Delaware,  paramount  to   statute,  242. 
disability  of  aliens  to  inherit  removed  by,  230. 


858  INDEX. 

[References  are  to  Sectionk.] 

Treaties,  doubtful  construction  extension  by,  181. 
equivalent  to  an  act  of  Congress,  167. 
existing  before  adoption  of  constitution,  164. 
extradition,  298-369. 

federal  question  arising  under,  100-114. 
France,  power  of  consuls  as  to  shipping  and  seamen,  453. 
Guadalupe  Hidalgo,  statute   of  Texas  as  in  conflict  with,  265. 
if   consul   has   exclusive  jurisdiction   under,   constable   arresting  liable 

for  false  imprisonment,  448. 
indemnity  for  attacks  on  Chinese,  524. 
Iowa,  superseding  statutes  in,  248. 
judgments  of  condemnation  annulled  by,  234. 
jurisdiction  of  admiralty  courts  as  to  American  seamen  not  taken  away 

by,  455. 

legislative  action  dependent  on,  85. 
making  of,  54-85. 

Maryland,  laws  of,  overcome  by  treaty,  253. 
Michigan  laws  of  overcome  by,  255. 
mining,  license  for  privilege  of,  239. 
mortgagee  alien,  title  of  protected  by,  236. 
naturalization,  464,  465. 
New  York,  laws  of  overcome  by,  256. 
North  Carolina,  laws  of,  overcome  by,  260. 
nullifying  laws  sequestering  property,  261. 
peace  with   Great  Britain,   12. 
overruling  act  of  Congress  with,  176. 

Porto  Eico,  status  of  inhabitants  of  left  to  Congress,  294. 
postponement  of  operation  of 'until  approval  of  Congress,  88. 
Prussia,  treaty  with  affects  citizens  of  Waldeck,  250. 
repeal  by  implication,  178. 
retroactive  effect,  92. 
self-executing,   185. 

South  Carolina,  laws  of  subject  to,  263. 
sovereignty  transferred  at  date,  87. 
states  prohibited  from  making,  22-38. 
supreme  law  of  land,  162. 

surrender  of  deserting  seamen  in  absence  of,  367. 

Swiss  Confederation,  provision  relative  to  disposition  of  property,  231. 
tariff  laws,  169. 

Tennessee,  laws  of  subject  to,  264. 
Texas,  laws  of  subject  to,  265. 
time  when  takes  effect,  86. 
title  of  heir  once  vested,  not  devested,  234. 
two  constructions,  which  preferred,  231. 
violation  of  by  one  nation,  97. 
Virginia,  laws  of  subject  to  treaty,  266. 


INDEX.  (  859 

[References  are  to  Sections.] 

Treaties,    Waldeck,    citizens   of   affected   by   treaty   with   Prussia,   250. 

want  of  judicial  power  to  enforce  under  Continental  Congress,  11. 

with  France  affecting  escheat,  235,  236. 

with  Great  Britain  affecting  escheat,  236. 

with  Italy,  involved  in  suits  for  damages  in  Mafia  riots,  530. 
Treaties  in  Force,  Algiers,  Appendix,  page  610. 

Argentine  Eepublic,  Appendix,  page  611. 

Austria-Hungary,  Appendix,   page   610. 

Baden,  Appendix,  page  615. 

Bavaria,  Appendix,  page  616. 

Belgium,  Appendix,  page  617. 

Bolivia,  Appendix,  page   623. 

Borneo,  Appendix,  page  624. 

Brazil,  Appendix,  page   624. 

Bremen,  Appendix,  page  626. 

Brunswick,  Appendix,  page  626. 

Central  America,  Appendix,  page  627. 

Chile,  Appendix,  page  627. 

China,  Appendix,  pages  629-635. 

Colombia,  Appendix,  page  637. 

Corea,  Appendix,  page  703. 

Costa  Eica,  Appendix,  page  638. 

Cuba,  Appendix,  page  640. 

Denmark,  Appendix,  page  643. 

Dominican  Eepublic,  Appendix,  page  647. 

Ecuador,  Appendix,  page  647. 

Egypt,  Appendix,  page  649. 

Ethiopia,  Appendix,  page  649. 

France,  Appendix,  pages  650-659. 

German  Empire,  Appendix,  pages  659,  660. 

Great  Britain,  Appendix,  pages  661-684. 

Greece,   Appendix,   page   683. 

Guatemala,  Appendix,  page   684. 

Hayti,  Appendix,  page  686. 

Hawaiian  Islands,  Appendix,  page  690. 

Hanover,  Appendix,  page  688. 

Hanseatic  Eepublics,  Appendix,  page  689. 

Hesse,  Appendix,  page  692. 

Italy,  Appendix,  page  693. 

Japan,  Appendix,  pages  697-703. 

Kongo,  Appendix,  page  702. 

Lew  Chew,  Appendix,  page  704. 

Liberia,  Appendix,  page  704. 

Liineburg,  Appendix,  page  626. 

Luxemburg,  Appendix,  page   704. 

Madagascar,  Appendix,  page  705. 


860  INDEX. 

[References  are  to  Sections.] 

Treaties  in  Force,  Mecklenburg- Schwerin,  Appendix,   page   706. 

Mecklenburg-Strelitz,  Appendix,  page  706. 

Mexico,  Appendix,  pages  707-719. 

Morocco,  Appendix,  page  719. 

Muscat,  Appendix,  page  721. 

Nassau,  Appendix,  page  722. 

Netherlands,  Appendix,  page  722. 

New  Granada,  Appendix,  page  636. 

Nicaragua,  Appendix,  page  726. 

North  German  Union,  Appendix,  page  727. 

Norway,  Appendix,  page  727. 

Oldenburg,  Appendix,  page  728. 

Orange  Free  State,  Appendix,  page  728. 

Ottoman  Empire,  Appendix,  page  729. 

Panama,  Appendix,  page  730. 

Paraguay,  Appendix,  page  732. 

Persia,  Appendix,  page  733. 

Peru,  Appendix,  page  733. 

Portugal,  Appendix,  page  737. 

Prussia,  Appendix,  page  738. 

Eoumania,  Appendix,  page  741. 

Eussia,  Appendix,  page  742. 

Salvador,  Appendix,  page  745. 

Samoan  Islands,  Appendix,  page   747. 

Sardinia,  Appendix,  page  749. 

Saxony,  Appendix,  page  749. 

Schaumburg-Lippe,  Appendix,  page  749. 

Servia,  Appendix,  page  750. 

Siam,  Appendix,  page  751. 

Spain,  Appendix,  pages  753-763. 

Sweden,  Appendix,  pages  759-762. 

Switzerland,  Appendix,  page  763. 

Tongo,  Appendix,  page  765. 

Tripoli,  Appendix,  page  766. 

Tunis,  Appendix,  page  659. 

Two   Sicilies,   Appendix,   page    768. 

Venzuela,  Appendix,  page  770. 

Wurttemberg,  Appendix,  page  772. 

Zanzibar,  Appendix,  page  773. 
Treaties  with  Indians.    See  Indians. 

Indian  nation  not  a  foreign  nation,  384. 

legislation  may  control,  391. 

liberal  construction  of,  390. 

policy  of  the  United  States,  387. 

power  to  make,  370. 

prior  to  legislation,  376. 


INDEX.  861 

[References  are  to  Sections.] 

Treaties  with  Indians,  right  of  occupation,  379. 

technical  meaning  of  not  to  be  considered,  392. 

tribe  not  a  sovereign  nation,  393. 
Treaty  Clauses  of  the  Constitution,  judicial  power  extends  to  treaties,  1. 

power  to  make  treaties,  1. 

states  prohibited  from  making  treaties,  1. 

treaties  the  supreme  law  of  the  land,  1. 
Treaty-making  Power,  Butler's  views,  142. 

Calhoun's  views,  138. 

Justice  Clifford's  views,  139. 

Cooley's  views,  136. 

difference  between  and  legislative  powers,  138. 

distribution  of  governmental  powers,  158. 

England  and  United  States,  difference  in,  58. 

extends  to  all  proper  subjects  of  negotiation,  140. 

extent  of,   133-161. 

implied  limitations  upon,  156. 

Kent's  views,  136. 

Lewis'  views,  151. 

Panama  canal  zone,  144. 

Pinkney's  views,  137. 

position  of  the  United  States,  150. 

public  schools,  right  to  attend,  145. 

Eawle's  views,  138. 

Secretary  Boot's  views,  155,  157. 

Senate  of  United  States,  debate  in,  149. 

suits  by  the  government,  159. 

Trespasses,  forcible,  may  become  subject  of  diplomatic  intervention,  581. 
Trial,  offense  committed  during,  of  person  extradited  for  another  offense, 

341. 

Tripoli,  treaties  in  force,  Appendix,  page  766. 
Trust,  secret  conveyance  to  aliens  on,  225. 

money  received  from  foreign  governments  for  American  citizens,  578. 
Tucker  Act,  appeals  under,  590. 

claimant  cannot  waive  tort  and  sue  on  contract,  587. 

concurrent  jurisdiction  of  district  and  federal  courts,  588. 

demand  before  suit,  not  necessary,  587. 

judgments  under,  590. 

liberal  construction  of,  587. 

petition  for  equitable  relief,  587. 

procedure    under,    589. 

provisions  of,  587. 

reformation  of  contract,  587. 

treaties  in  relation  to,  Appendix,  pages  659,  767. 
Tweed,  delivered  to  United  States  by  Spain,  300,  301. 
Tunstall,  John  H.,  claim  of  against  United  States,  576. 


862  INDEX. 

[References  are  to  Sections.] 

Under  the  Authority  of  the  United  States,  meaning  of  clause,  165,  166. 
Undue  Influence,  courts  cannot  inquire  whether  treaty  made  by,  93,  128. 
United  States,  transit  across  territory  of  in  case  of  extradition,  362. 

under  the  authority  of,  meaning  of  clause,  165,  166. 
United  States  Attorney,  extradition  proceedings  need  not  be  conducted  by, 

344. 

Uruguay  River,  treaty  for  free  navigation  of,  Appendix,  page  611. 
Utah,  statutes  as  to  public  lands  in,  293. 
Utes,  treaty  with  repealed  by  act  admitting  Colorado,  171. 

Vagabonds,  power  of  state  to  exclude,  190. 

Variances,  extradition  on  one  charge,  indictment  for  another,  338. 

Venezuela,  treaties  in  force,  Appendix,  page  770. 

Vessel,  claims  for  capture  of,  562. 

consuls  cannot  require  masters  to  carry  persons  accused  of  crime,  357. 

consul  cannot  exempt  from  confiscation,  449. 

consul    having    exclusive    jurisdiction    over    controversies    concening, 
448. 

in  service  of  foreign  power,  renounces  claim  to  protection  of  the  United 
States,  567. 

launched,   a   ship   of  war,    117. 

seamen  maliciously  assaulted  by  captain  of,  448. 

United  States  not  liable  for  unlawful  captures  by  its  subjects,  472. 
Vested  Remainders,  included  by  "lands"  in   treaty,  254. 
Vested  Rights,  Eevolution  did  not  forfeit,  256. 
Vested  Titles,  cession  under  treaty  does  not  affect,  288. 
Vice-consul,  appointment  of,  397. 

included  by  term  "consul,"  458. 
Vice-consul  General  included  by  term  ' '  consul, ' '  458. 

Violation  of  Treaty,  courts  cannot  enforce  treaty  violated  by  government, 
94. 

injured  party  alone  can  complain,  96. 

Violence,  prisoner  taken,  by,  from  one  state  to  another,  311. 
Virginia,  boundary  line  between  and  Tennessee,  41,  127. 

escheat  proceedings  in,  231. 

inheritance,  statute  as  to,  228. 

law  sequestering  property  nullified  by  treaty,  166. 

resolution  for  appointment  of  commissioners  to   form  constitution,   18. 

time  for  heir  to  sell  estate,  232. 

treaty  supersedes  laws  of,  266. 

Waiver,  default,  against  consuls,  415. 

failure  of  consul  to  plead  exemption,  412,  415. 
Waldeck,  treaty  between  United  States  and  Prussia    affects,  250. 
War  Power,  acquisition   of  territory  by,   268. 


INDEX.  863 

[References  are  to  Sections.] 
Warrant,  in  extraditions,  President  may  refuse  if  evidence  insufficient,  357. 

of  Secretary  of  State  for  surrender  of  fugitive  subject  to  trial  on  dif- 
ferent  charge,   358. 
Warship,  arrest  of  fugitive  on,  348. 

crime  committed  on  within  jurisdiction  of  nation  to  which  ship  belongs, 
309. 

exempt  from  jurisdiction  of  local  courts,  333. 

foreign,  escape  from  as  affecting  extradition,  302. 

murder,  committed  on  British,  an  extraditable  offense,  333. 
Washington,  attacks  on  Chinese  in,  524. 
Washington,  George,  declination  to  give  facts  as  to  Jay's  treaty,  81. 

elected  president  of  constitutional  convention,  19. 

lack  of  power  to  effectuate  treaties,  9. 

special  message  of,  on  making  treaties,  60. 

suggestion  of,  as  to  oral  communications  in  making  treaties,  62. 

weakness  of  confederation,  6. 

Weights,  treaty  for  international  bureau  of,  Appendix,  page  776. 
Wharfage,   public   moneys,   when   collected,   317. 
Wheelock,  John  E.,  redress  for  mob  violence,  483. 
Widow   of   alien   may   have   protection   of   government    in   presentation    of 

claim,  568. 

Willamette  River,  bridge  over,  174. 
Wilson,  William,   claim   of   for   mob   violence,   483. 
Wisconsin,  statute  for  damages  for  death  of  relative,  215. 
Witnesses,  American  consuls  as,  427-429. 

consuls  as,  416-425. 

consul  possessing  information  received  in  official  capacity,  433. 

consuls,  subpoena  of  in  behalf  of  prosecution,  422. 

consuls  subpoenaed  before  a  state  court,  425. 

court-marshal,  consul  as,  432. 

facts  within  personal  knowledge  of  consul,  431. 
Woman,  marrying  foreigner  takes  nationality  of  her  husband,  471. 
Words  and  Phrases,  "assassination,"  under  treaty  with  Salvador,  319. 

"biens"  and  "effects,"  246. 

"citizens"  embraced  by  term  "persons,"  324. 

"consul"  includes  consul  general,  vice-consul  general  and  vice-consul, 
458. 

"criminal  by  the  law  of  both   countries,"   314. 

deportations,   299. 

"effects,"  meaning  of,  260. 

"extradition,"    299. 

"falsification"  in  Mexican  treaty,  320. 

"forgery"   includes   crime   of   uttering   forged   papers,   319. 

"forgery  in  the  third  degree,"  320. 

f '  forgery ' '   in    English    law,    not   including   false    entries    in   books    of 
account,  318. 


864  INDEX. 

[References  are  to  Sections.] 
Words  and  Phrases,  " goods "  not  including  " lands,"  249. 

"homicide"  under   treaty  with   Salvador,   319. 

"infanticide,"  under  treaty  with  Salvador,  319. 

in  Germany  words  alone  do  not  constitute  trademark,  205. 

jurisdiction,  convertible  with  term  "country,"  309. 

"laborer"  used  in  popular  sense,  191. 

"lands"   not   included  by   goods,   249. 

"lands"  includes  vested  remainders,  254. 

murder  under  treaty  with  Salvador,  319. 

' '  patricide ' '  under  treaty  with  Salvador,  319. 

"poisoning"  under  treaty  with  Salvador,  319. 

political  offense,  335. 

possessory  rights  not  covered  by  treaties,  255. 

"property,"  definition  of,  276. 

"property"  includes  trademarks,  279. 

"property"  includes  right  to  labor,  200. 

"property"  includes  every  species  of  title,  278. 

"purchase"  includes  acquisition  by  devise,  223. 

"or  be  punished,"  omitted  from  treaty  of  extradition,  178. 

"public  moneys,"  317. 

' '  residing  in  the  state,  > '  243. 

"supreme  law  of  land,"  history  of,  163. 

things  movable,  included  by  word  ' '  effects, ' '  260. 

transportation,  299. 

treaties,  agreements  and  compacts,  40. 

"under  the  authority  of  the  United  States,"  165,  166. 

vested  remainders  included  in  word  "lands,"  254. 
Writ  of  Error,  courts  of  claims,  590. 

not  allowable  in  place  of  appeal  to  review  ruling  on  habeas  corpus,  354. 
Wiirtteniberg,  heirs  improving  property,  259. 

time  to  sell  under  treaty  with,  247,  257. 

treaty    of   naturalization    with,    464. 

treaties  in  force,  Appendix,  page  772. 
Wyoming,  statutes  as  to  public  lands  in,  293. 

Zambrano,  claim  of,  for  mob  violence,  486. 

Zanzibar,  treaty  as  to  light  and  harbor  dues,  Appendix,  page  681. 
treaties  in  force,  Appendix,  page  773. 


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